Case Note & Summary
The appellant, Kumar Ghimirey, was convicted by the Special Judge (POCSO Act, 2012) under Section 9/10 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and Section 341 of the Indian Penal Code (IPC) for attempting to sexually assault a seven-year-old girl. The trial court sentenced him to seven years simple imprisonment and a fine of Rs. 50,000 under the POCSO Act, and one month simple imprisonment under Section 341 IPC. The appellant appealed to the Sikkim High Court against his conviction. The High Court, while dismissing the appeal, altered the conviction from Section 9/10 to Section 5(m) read with Section 6 of the POCSO Act, holding that the offence constituted aggravated penetrative sexual assault, and enhanced the sentence to ten years rigorous imprisonment with a fine of Rs. 5,000. The High Court also directed payment of Rs. 1,00,000 compensation to the victim under the Sikkim Compensation to Victim Scheme. The appellant challenged the enhancement of sentence before the Supreme Court, arguing that the High Court could not enhance the sentence in an appeal filed by the accused without issuing a notice for enhancement. The Supreme Court examined the powers of the Appellate Court under Section 386 of the Code of Criminal Procedure, 1973 (CrPC). It noted that under Section 386(b)(iii), in an appeal from a conviction, the Appellate Court may alter the nature or extent of the sentence but cannot enhance it. Enhancement is permissible only in an appeal for enhancement under Section 386(c) or in revision under Section 401 CrPC, and only after giving the accused an opportunity of showing cause against such enhancement as per the proviso to Section 386. The Court found that the High Court had not issued any notice to the appellant before enhancing the sentence, which was a violation of natural justice and the prescribed procedure. Relying on Surjit Singh v. State of Punjab, the Supreme Court held that the enhancement was illegal. Consequently, the Supreme Court allowed the appeal, set aside the High Court's order to the extent it enhanced the sentence, and remitted the matter to the High Court for fresh consideration of the sentence after giving notice of enhancement to the appellant. The conviction under Section 5(m)/6 of the POCSO Act was upheld, but the sentence was left to be determined afresh.
Headnote
A) Criminal Procedure Code - Enhancement of Sentence - Section 386(b)(iii) and proviso - Appeal by Accused - The High Court, while dismissing an appeal filed by the accused against conviction, cannot enhance the sentence without following the procedure prescribed under the proviso to Section 386 CrPC, which requires that the accused be given an opportunity of showing cause against such enhancement. In the instant case, the High Court altered the conviction from Section 9/10 to Section 5(m)/6 of the POCSO Act and enhanced the sentence from seven years to ten years rigorous imprisonment without issuing any notice to the appellant. Held, that the enhancement was illegal and the matter was remitted to the High Court for fresh consideration after giving notice of enhancement (Paras 11-14). B) Criminal Procedure Code - Powers of Appellate Court - Section 386 - Alteration of Finding - The Appellate Court, in an appeal from conviction, may alter the finding, but cannot enhance the sentence. Enhancement is permissible only in an appeal for enhancement of sentence under Section 386(c) or in revision under Section 401 CrPC, after giving notice to the accused. The High Court's action in enhancing the sentence in the accused's appeal without notice was contrary to law (Paras 10-12). C) Protection of Children from Sexual Offences Act, 2012 - Aggravated Penetrative Sexual Assault - Sections 5(m), 6, 9, 10 - The High Court, on reappreciation of evidence, found that the offence committed by the appellant was aggravated penetrative sexual assault under Section 5(m) punishable under Section 6, and not under Section 9/10 as held by the trial court. However, the enhancement of sentence from seven years to ten years was set aside due to procedural violation (Paras 5-7, 14).
Issue of Consideration
Whether the High Court could enhance the sentence of the appellant from seven years to ten years in an appeal filed by the accused without issuing a notice for enhancement under Section 386 proviso of CrPC.
Final Decision
The Supreme Court allowed the appeal, set aside the High Court's order to the extent it enhanced the sentence, and remitted the matter to the High Court for fresh consideration of the sentence after giving notice of enhancement to the appellant. The conviction under Section 5(m)/6 of the POCSO Act was upheld.
Law Points
- Enhancement of sentence in appeal by accused requires notice under Section 386 proviso CrPC
- Appellate Court cannot enhance sentence without giving opportunity of hearing
- Section 386(b)(iii) CrPC prohibits enhancement in appeal from conviction
- Section 401 CrPC read with Section 386(b)(iii) allows enhancement only after notice
