Vs. S.S.R. Velusamy & Anr  Insc 456
(18 September 2003)
Hegde & B.P.Singh.
Crl.A.Nos.1684/96, 1683/96 and 1685/96) SANTOSH HEGDE,J.
these appeals, the appellants were charged for offences punishable under
Sections 420, 477(a), 468, 420 read with Section 109, 409 read with 109 and 468
read with 109 IPC. The trial court, namely, the VIth Additional Assistant
Sessions Judge, Thiruchirapalli, convicted the appellants under various
sections, among them, for offences punishable under Section 420 and Section 420
read with 109 IPC. It awarded a maximum sentence of 5 years R.I.
appeal filed by the convicted accused, the appellate court confirmed the
conviction recorded by the trial court but reduced the sentence to 2 ½ years
each and further acting purportedly under various GOs. of the Government, it
granted remission of the said sentence of 2 ½ years also.
revision filed by the complainant, the High Court of Judicature at Madras considering the question of jurisdiction
of the court to remit the sentence under the various G.Os. came to the
conclusion that such a remission could not have been granted by the court,
hence, allowed the revision. It also came to the conclusion that there is no
need to remit the matter back to the lower appellate court, accordingly, set
aside the impugned judgment of the lower appellate court and restored the
judgment of the trial court both in regard to conviction and sentence. The
effect of the said judgment was that the appellants have to undergo the
sentence of 5 years awarded by the trial court.
these appeals, Shri M.N.Krishnamani, learned senior counsel appearing for the
appellants contended that the High Court was in error in entertaining the
revision at the instance of the complainant. He also submitted that the High
Court was in error in setting aside the judgment of the lower appellate court
which granted the appellants benefit of remission. Alternatively he contended
that neither the lower appellate court nor the High Court have gone into the
merits of the case on facts, hence, they have been denied the benefit of appeal
which is otherwise provided under the Criminal Procedure Code.
A.T.M.Ranga Ramanujam, learned senior counsel appearing for the State strongly
supported the judgment of the High Court and contended that from the purport of
the order of the lower appellate court, it is clear that the court had applied
its mind in regard to the facts of the case before confirming the conviction.
He also submitted that it is possible that the counsel appearing for the
appellants before the lower appellate court did not address any argument on merits,
therefore, the complaint of the learned counsel for the appellants that the
appellants did not get benefit of the appeal on facts is not correct. He
supported the finding of the High Court on the question of grant of remission
which he submitted, was without jurisdiction.
as the first question as to the maintainability of the revision at the instance
of the complainant is concerned, we think the said argument has only to be
noted to be rejected. Under the provisions of Code of Criminal Procedure, 1973,
the court has suo moto power of revision, if that be so, the question of the
same being invoked at the instance of an outsider would not make any difference
because ultimately it is the power of revision which is already vested with the
High Court statutorily that is being exercised by the High Court. Therefore,
whether the same is done by itself or at the instance of a third party will not
affect such power of the High Court. In this regard, we may note the following
judgment of this Court in the case of Nadir Khan vs. The State (Delhi
Administration), (AIR 1976 SC 2205).
second question that has come up for our consideration in this case pertains to
the right of the lower appellate court to grant various remissions under
various notifications issued by the State, reference to which has been made by
the lower appellate court in its judgment. The right to grant remission is
governed by the provisions of Section 432 of the Code of Criminal Procedure
which vests the said power with appropriate Government and not in any court.
that power is subject to conditions enumerated in that Section and one such
condition is that an accused person who is being granted remission of sentence
will have to be in custody, when the decision to grant remission is made by the
Government concerned. See proviso to Section 432(5) of the Code which was not
the factual position in this case apart from the fact the Court has no
jurisdiction of remission of sentence under Section 432 of the Code. Therefore,
in our opinion, the first appellate court was not justified in granting the
leaves us to consider the last question argued before us by the learned counsel
for the appellant that the appellants had a right of appeal on facts conferred
statutorily by the Code of Criminal Procedure wherein they could have convinced
the appellate court that the findings of the court below are erroneous and not
based on facts. He pointed out from the judgment of the lower appellate court
that there has been no such consideration by the said court. He submitted that
if we are not inclined to accept his argument in regard to the right of the
appellate court to grant remission, then he is entitled to the benefit of
hearing before the appellate court on merits of the case. On facts, he
submitted that the contention of the learned counsel for the State that there
was no argument addressed by his counterpart on merits of the case before the
lower appellate court is not correct and the same is also not so reflected in
the judgment of the said court. We have also perused the said judgment and we
do not think there is any application of mind in regard to the factual aspect
of the case by the lower appellate court which has merely proceeded to consider
the quantum of sentence and grant of remission. Apart from the fact that right
of appeal is statutorily provided by the Code, a Constitution Bench of this Court
in the case of A.R.Antulay vs. R.S.Nayak & Anr. (1988 2 SCC 602) has held
that deprivation of one statutory right of appeal would amount to denial of
procedure established by law under Article 21, and further such denial violates
the guarantee of equal protection of law under article 14 of the Constitution.
Placing reliance on the said judgment of this court, we are of the opinion that
since the lower appellate court, which was the first court of appeal, has not
considered the factual aspect of the case while considering the appeal, we
think the appellants have been denied an opportunity of agitating their case on
facts against the judgment of the trial court. In such circumstances, we think
the prayer of the learned counsel is justified. Therefore, we allow these
appeals, set aside the impugned judgment of the High Court and remand the
matter back to the Court of the Sessions Judge at Thiruchirapalli who will hear
all appeals which were filed against the judgment and conviction made by the VIth
Additional Assistant Sessions Judge, Thiruchirapalli in Calender Case No 2 of
1988 and other connected matters. Since the matter is very old, we think it
appropriate to direct the said appellate court to dispose of the same on merits
within three months from the receipt of the records.