Assistant Collector of Customs vs Krishnamoorthy

Petition under Sections 397 and 401 of the Code of Criminal Procedure 1898, praying the High Court to revise the Order of the Court of the

Additional Chief Judicial Magistrate, Madurai, dated 17-2-1984 and made in C.C. No. 131 of 1983.

ORDER

This petition coming on for hearing on this day upon perusing the petition, and the Order of the Lower Court, and the record in the case, and upon

hearing the arguments of Mr. Rajamanickam, Central Govt. Public Prosecutor on behalf of the Petitioner, and of Mr. K. Asokan, Advocate for the

Respondents, the Court made the following order :-

This is a revision petition filed by the Assistant Collector of Customs Ramanathapuram at Madurai under Sections 397 and 401 of the Code of

Criminal Procedure complaining that the minimum sentence that shall be awarded has not been awarded to the two accused by the trial court and

therefore it is necessary that the sentence awarded by the trial court is set aside and sentence is imposed according to law.

The two accused (respondents herein) were prosecuted u/s 135(1)(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 charged 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 tried the case found the accused guilty under the above-

said sections, and as regards sentence the learned Magistrate, taking into consideration the fact that the accused had been, for the same offence, in

the custody of jail under the Control of Foreign Exchange and Prevention of Smuggling Activities Act, and they had not been convicted for any

previous offence, had opined that a sentence of fine alone would meet the ends of justice and therefore, sentenced the accused only with a fine of

Rs. 750/- each and in default to undergo Rigorous Imprisonment for two months.

Aggrieved that the minimum sentence prescribed u/s 195(1)(a)(i) has not been awarded and the reasons given by the learned Magistrate for not

awarding the minimum sentence of one year is improper, the Assistant Collector of Customs has preferred this revision.

The respondents/accused object to the revision petition on the ground that the revision petition is not maintainable.

Section 401 of the Code of Criminal Procedure deals with the High Court''s powers of revision. As per sub-section (4) thereof, where, under

the code, when an appeal lies and no appeal is brought, not proceedings by way of revision shall be entertained at the instance of the party who

could have appealed. Section 377 of the Code empowers the State Government, and in certain cases the Central Government, to file an appeal

against the sentence on the ground of its inadequacy. In view of the said sub-section 4 of Section 401, the State Government, or in certain cases

the Central Government, cannot prefer a revision petition against a sentence on the ground of its inadequacy.

In the present case the complaint has been filed by the petitioner herein viz., the Assistant Collector of Customs, Ramanathapuram at Madurai

and it is not in dispute that the case is in the nature of a private complaint. It has been held by a Division Bench of this Court in ""ASSISTANT

COLLECTOR OF CENTRAL EXCISE (PREVENTIVE) MADRAS v. V. KRISHNAMURTHY"" 1983 LW Cri 196 that an appeal preferred

by the Assistant Collector, Central Excise u/s 377(2) Cr.P.C. on the ground of inadequacy of the sentence awarded is not maintainable since the

case by the Customs Department is not a case among the cases adumbrated in that subsection. As to this there is no controversy in the present

case. Therefore the petitioner is in the position of a private party and cannot file an appeal on the ground of inadequacy of sentence under the

Code.

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 u/s 377 can be

maintained and not a revision petition either by the State Government or by the petitioner u/s 401. A careful combined reading of Section 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 the sentence, ....."".

The new Section 401 does not contain the words ""may enhance the sentence and the relevant portion of it (new Section 401) reads;

..... the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a

Court of Section by Section 307. ...... "".

Thus when in the old Section 439 itself it is stated that the High Court has revisional power to enhance the sentence, in the new Section 401 it is

not stated so, but however, it is stated that the High Court will have the discretion to exercise any of the powers conferred on a Court of appeal.

This discretion would, indeed, include the power to enhance the sentence in appeal u/s 386. There is no doubt that the High Court has

discretionary power under the old Section as well as the new Section, to enhance sentence, but the question is whether an aggrieved person, like

the petitioner complainant in the present case, can file a revision petition for enhancement of sentence. Under the old code, as seen above, there

was no provision for an appeal against the sentence on the ground of its inadequacy, but in the new code, u/s 377 it is provided for an appeal

against the sentence in the ground of its inadequacy. Sub-section 3 of Section 377 reads as follows :-

When an appeal has been filed against the sentence on the ground of its inadequacy, the High Court shall not enhance the sentence except after

giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause, the accused may plead for

his acquittal or for the reduction of the sentence"".

From this provisions it is seen that when an appeal against the sentence on the ground of its inadequacy is filed, it may ultimately end in the benefit

to the accused because the accused can plead for his acquittal or for the reduction of the sentence. This benefit the accused cannot have when a

revision petition is permitted to be filed. It could not have been the intention of the Legislature to permit a party to file a revision petition against the

sentence on the ground of its inadequacy which would deprive the accused of the benefit he would have had if an appeal against the sentence on

the ground of its inadequacy is filed. It is therefore clear that a party will not have right to prefer a revision petition against the sentence on the

ground of its inadequacy. As indicated above, the High Court will have suo motu revisional power the 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.

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 W Cri 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 (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 Parliament.

But Mr. P. Rajamanickam, the learned counsel for the petitioner would submit that the Supreme Court in Bachan Singh and Others Vs. State of

Punjab, , which is earlier to the said Division Bench ruling of this Court, has held that a revision petition can be filed inspite of Section 377 of the

Code of Criminal Procedure and this ruling of the Supreme Court has not been brought to the notice of the Division Bench. On carefully going

through this ruling of the Supreme Court, I do not think that had the Division Bench noted it, its view would have been different. In the Supreme

Court''s case, the revision petition was filed by the State and not a private person or the Central Government. In that case the accused Bachan

Singh, Gurnam Singh and Chanan Singh were convicted by the Sessions Judge of an offence u/s 304 Part I I.P.C. read with Section 149 I.P.C.

and were sentenced to rigorous imprisonment for 10 years and a fine of Rs. 1,000/-. They were also convicted of an offence u/s 148 I.P.C. and

sentenced to rigorous imprisonment for 2 years. The remaining two accused Ravail Singh and Vir Singh were convicted of an offence u/s 304 Part

I read with Section 149 I.P.C. and they were sentenced to rigorous imprisonment for 5 years and a fine of Rs. 500/-. Further they were convicted

of an offence u/s 147 I.P.C. and were sentenced to rigorous imprisonment for one year.

An appeal was filed by the accused against their conviction and sentence and the State filed an appeal for their conviction and sentence u/s 302

I.P.C. The State filed a revision petition also u/s 401 of the Code of Criminal Procedure for enhancement of sentence. The High Court heard the

three matters together (appeal by the accused, appeal by the State and Revision by the State) and passed an order dismissing the appeal filed by

the accused, but enhanced the sentence of Bachan Singh, Gurnam Singh and Chanan Singh u/s 304 Part I read with Section 149 I.P.C. to rigorous

imprisonment for life, and enhanced the sentence of Ravail Singh and Vir Singh under the same sections to rigorous imprisonment for 10 years.

While making that order, the High Court observed that the State''s appeal for enhancement of punishment was ""partly accepted"".

As against this order, an appeal was preferred to the Supreme 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. This plea was rejected on the ground that no appeal was filed by the State u/s 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 u/s 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 u/s 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 the Supreme Court, therefore, it was not permissible to the revision petitioner (State) to file an appeal u/s 377 Cr.P.C.

This is not the position in the present case of ours. It is not argued by the petitioner (rightly) that it is not permissible to the State to file an appeal

u/s 377 Cr.P.C. Therefore, from the above Supreme Court ruling, it cannot be argued that a private person can maintain a revision against

inadequacy of sentence.

The learned counsel for the petitioner would next rely on the Supreme Court ruling in ""PRATAP v. STATE OF U.P."" 1973 Crl.L.J. 565. In that

case the accused was convicted u/s 302 I.P.C. and sentenced to life imprisonment. During enquiry it was sought to prove that the accused had

been already convicted for murder and sentenced to life imprisonment and he was undergoing that sentence and therefore he should have been

convicted u/s 303 I.P.C. and sentenced to death only. This was not successful before the Sessions Court. While the accused preferred an appeal

against the conviction u/s 302 and the sentence of life imprisonment, the brother of the deceased filed a revision petition praying that the accused

should be sentenced to death u/s 303 I.P.C. The High Court dismissed the appeal filed by the accused. But it held that there is proof that the

accused was already undergoing sentence of life imprisonment and therefore he is liable to be convicted and sentenced u/s 303 I.P.C. and it

passed an order accordingly. As against this as appeal was preferred to the Supreme Court and it was argued that for enhancement of sentence,

the procedure laid down u/s 310 of the Code of Criminal Procedure should have been followed and that having been not done, the High Court

erred in passing the impugned order enhancing the sentence. This contention was repelled. It was held that u/s 439 Cr.P.C. (Old code) the High

Court had power to enhance the sentence if it was found that the sentence passed was illegal, improper or incorrect. It was observed that.

The power u/s 439 Cr.P.C. is one which the High Court can exercise suo motu, and all that a person filing a revision petition under that section

does, is to drawn the Court''s attention to an illegal, improper or incorrect finding, sentence or order of subordinate court"".

It was also observed that,

The fact that in this case, the brother of the deceased filed revision petition and the Government did not do so does not affect 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.

The contention of the learned counsel for the petitioner that the trial Court erred in not awarding their minimum sentence prescribed u/s 135(1)

(a)(i) of the Customs Act also appears to me to be without merit. As seen above, the learned Magistrate has given reason as to why a lesser

sentence of fine alone would meet the ends of justice. One of the reasons given by the learned Magistrate is that the accused had already been in

jail for one year under the COFEPOSA Act on the basis of the very acts complained in this case. According to the learned counsel this cannot be

a reason for not awarding the minimum sentence prescribed. In this connection he has cited the decision in ""STATE OF MAHARASHTRA v.

CHAMPALAL"" 1981 Crl.L.J. 1273 and argued that in that case the Supreme Court did not accept the plea that in that case the accused was

preventively detained for nearly three years on the basis of the very acts complained in that case and therefore he should not be sent to jail upon his

conviction. On reading the Judgment carefully, I find that the Supreme Court has not said that that plea was irrelevant, but held that considering the

gravity of the offence the plea put forth on his behalf for not sending him to jail cannot be accepted. In that case the accused was charged with

having been in illegal possession of eleven thousand tolas of foreign gold, and he was convicted by the trial Magistrate u/s 120-B of I.P.C. read

with Section 135 of the Customs Act and 126-P (2)(ii) and (iv) of the Defence of India Rules 1962, Section 135(a) and (b) and (i) of the Customs

Act and Rule 126-P (2)(ii) and 126-P (2) and (iv) of the Defence of India Rules and sentenced under various heads of charge to suffer

imprisonment for for various terms ranging from two years to four years and to pay a fine of Rs. 10,000/- on each of the different counts. The

substantive sentences of imprisonment was ordered to run concurrently. On appeal by the accused, the High Court found him not guilty and

acquitted him. As against this Judgment of the High Court, the State of Maharashtra filed an appeal to the Supreme Court. The Supreme Court on

consideration of the evidence in the case found that there is evidence to show that the accused was guilty of the charges framed against him. It was

then argued among other things that the accused had been in the preventive custody on the basis of the very same acts. As stated above,

expressing inability to accept his submission, the Supreme Court set aside the Judgment of acquittal of the High Court and restored the Judgment

of conviction and sentence of the trial Court. Thus the facts in the Supreme Court''s case are different from the facts in our case. May be the

reasons given by the Magistrate for not awarding the minimum sentence prescribed in the section are not adequate, but that cannot be a ground for

interference with the sentence awarded in a revision petition even if the revision petition filed by the petitioner is maintainable.

Thus I find no reason to interfere with the Judgment of the trial Court as regards the sentence. Consequently, the petition is dismissed.