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TMI Blog1988 (6) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore it is necessary that the sentence awarded by the trial court is set aside and sentence is imposed according to law. 2. The two accused (respondents herein) were prosecuted under Section 135(l)(a)(i) of the Customs Act, 1962 read with Section 3 of the Exports and Imports Control Act, for an offence of evasion of duty in respect of Polyester shirting cloth, National Panasonic Cassette Recorder and National Panasonic Stereo Cassette Recorder of foreign origin, of the value of Rs. 1,16,586/-. The prosecution case is that on 8-8-1982 at 1.00 A.M., a foreign boat was spotted at the sea shore of Devipattinam and when it was chased and stopped it was found that the accused were having the said foreign goods in the said boat and they had no permission to have those goods and those goods have been prohibited from bringing into the country without the permission of the Controller of Exports and Imports, and the accused intended to evade payment of duty chargeable on the goods. The accused were charge sheeted by the petitioner herein viz., the Assistant Collector of Central Excise, Customs Division, Ramanathapuram at Madurai and the learned Additional Chief Judicial Magistrate who tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in the position of a private party and cannot file an appeal on the ground of inadequacy of sentence under the Code. 7. The objection to the petition is that whatever may be the case with regard to appeal, the petitioner cannot, in a revision petition, agitate on the ground of inadequacy of sentence and seek enhancement of the sentence. It is argued that only an appeal by the State Government under Section 377 can be maintained and not a revision petition either by the State Government or by the petitioner under Section 401. A careful combined reading of Sections 401 and 377 of the Code of Criminal Procedure would appear to favour this argument. Section 377 is a new section introduced during the amendment of the Code in 1973 and prior to that there was no provision in the Code for an appeal against the inadequacy of sentence. Before 1973, in the Old Code, Section 439 itself contained a direct provision for revision, for enhancement of sentence. The relevant words in the section were as follows: ".... the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 423, 426, 427 and 428 or on a Court by Section 338, and may enhance t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st the sentence on the ground of its inadequacy. As indicated above, the High Court will have suo motu revisional power under Section 401 of the Code of Criminal Procedure to enhance the sentence, but this power will be exercised only in the case of illegality or impropriety or incorrectness in awarding the sentence. 8. This view of mine that a private party will have no right to file a revision petition on the ground of inadequacy of sentence has already been the view of a Division Bench of this Court in "KRISHNAMURTHY AND ELIMALAI, IN Re." (1983 Law Weekly - Criminal -166). There it has been clearly held that, "In the matter of enhancement of sentence, the High Court's powers of revision are circumscribed by the terms of Section 377 itself. As per that Section, it is only the State Government under sub-section (1) or in appropriate cases the Central Government under sub-section (2) that can file an appeal for enhancement of sentence. Such being the case, it can never be said that the High Court can entertain a revision at the instance of a private party for enhancement. To hold otherwise would result in transgressing the parameters of Section 377 Cr. P.C. set out by Parliamen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Court by the accused. It was argued for the accused that the High Court committed an error of law in enhancing the sentence of the accused without giving them reasonable opportunity of showing cause against the enhancement and without allowing them to plead for their acquittal or for reduction of sentence as contemplated by sub-section (3) of Section 377 of the Code of Criminal Procedure. Tius plea was rejected on the ground that no appeal was filed by the State under Section 377 of the Code of Criminal Procedure. As regards the revision petition filed by the State, the Supreme Court has stated in para 7 of its Judgment that, "As has been stated, a petition was filed under Section 401 Cr. P.C. for enhancement of the sentence, and it was clearly maintainable as it was not permissible for the revision petitioner to file an appeal under Section 377. It will be recalled that the High Court made an express order on December 9, 1974 for the hearing of the revision petition along with the appeal which had been filed by the accused". According to the Supreme Court, therefore, it was not permissible to the revision petitioner (State) to file an appeal under Section 377 Cr. P.C. Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffect the powers of the High Court under that Section." Now, as pointed out above, in Section 439 of the Old code, it had been expressly provided for enhancement of sentence while it is not so in Section 401 of the new code. And Section 377, for appeal against inadequacy of sentence, has been newly provided. Hence there is considerable difference between Section 439 of the old code and Section 401 of the new code. Further, what the Supreme Court has said is that the High Court has suo motu power to enhance sentence. This means that the High Court's enhancing the sentence is not necessarily on the basis of a revision petition filed by a private party. The Supreme Court has not stated expressly or impliedly that a private party has right to file a revision petition against the inadequacy of sentence. For all these reasons, I do not see any merit in the contention that the petitioner had right to file a revision petition against the inadequacy of sentence, and hence the petition is liable to be dismissed. 10. The contention of the learned counsel for the petitioner that the trial Court erred in not awarding their minimum sentence prescribed under Section 135(l)(a)(i) of the Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X
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