BHARATKUMAR RAMESHCHANDRA BAROT versus STATE OF GUJARAT

Citation: [2018] 3 S.C.R. 689 · Decided: 26-03-2018 · Supreme Court of India · Bench: R.K. AGRAWAL · Disposal: Dismissed

Judgment (excerpt)

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BHARATKUMAR RAMESHCHANDRA BAROT
v.
STATE OF GUJARAT
(Criminal Appeal No. 448 of 2018)
MARCH 26, 2018
[R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.]
Code of Criminal Procedure, 1973: s.377 – Session Court
awarded to the appellant 10 years rigorous imprisonment for offence
under s.302 IPC – On State’s appeal under s.377, High Court
enhanced the sentence from 10 years  to life imprisonment – On
appeal, held: Once the Sessions Judge found the appellant guilty
for commission of the offence of the murder punishable under s.302
IPC, the only punishment that can be awarded in law is either the
“death penalty” or “imprisonment for life” and the “fine” – s.302
IPC, in clear terms, provides that “whoever commits murder shall
be punished with “death” or “imprisonment for life” and shall also
be liable to “fine” – Any punishment less than the life imprisonment,
as prescribed under s.302 IPC, if awarded by any Court is per se
illegal and without authority of law – Indeed, there is no such
discretion left with the Court in awarding the punishment except to
award the punishment which is prescribed under s.302 IPC – Penal
Code, 1860 – s.302 – Sentence/Sentencing.
Code of Criminal Procedure, 1973: s.377 – Object of – Held:
The object of s.377 is that when the State files an appeal seeking
enhancement of jail sentence awarded by the Sessions Judge, the
jail sentence cannot be enhanced unless the accused is given an
opportunity to defend it – The accused is also entitled to pray for
his acquittal or award of lesser punishment – If the accused, after
service of notice fails to raise this plea then the High Court would
be justified in deciding the State’s appeal on merits which is confined
to only for enhancement of jail sentence – Therefore, the accused
cannot later claim remand the case for rehearing of the appeal.
Code of Criminal Procedure, 1973: s.377(3) – Requirement
under, non-compliance – Plea by appellant that he was deprived of
his right to oppose the appeal and also his right to urge the grounds
[2018] 3 S.C.R. 689
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SUPREME COURT REPORTS
[2018] 3 S.C.R.
for his acquittal as provided in s.377(3) of the Code; that appellant
was not afforded adequate opportunity to defend himself in the
appeal filed by the State for enhancement of jail sentence; that
sufficient time was not given to amicus curiae to prepare the case
which caused prejudice to the appellant – Held: Plea is not
sustainable – Notice of appeal was duly served on the appellant –
It was not the case of the appellant that he had no knowledge of
filing of the appeal by the State against him or there was any infirmity
in effecting service of notice of appeal which rendered the
proceedings in appeal as bad in law – Despite notice having been
served personally on the appellant, he did not appear – Though,
the appellant had an independent right of appeal but he did not file
any regular appeal questioning the legality of the order of the
Sessions Judge convicting him for commission of the offence of
murder – High Court, having found that there was no representation
on behalf of the appellant despite personal service effected on him,
was justified in appointing a lawyer as amicus curiae to safeguard
the appellant’s interest and to assist the Court as well – The amicus
curiae had never made any complaint in the High Court for not
giving him more time for preparation of the case – High Court,
therefore, ensured compliance with s.377(3).
Dismissing the appeal, the Court
HELD: 1. There was due compliance with the requirements
of Section 377(3) of the Code by the High Court and, therefore,
no fault could be noticed in the reasoning and conclusion arrived
at by the High Court so far as the compliance of Section 377(3) of
the Code is concerned.  The object of Section 377 of the Code is
that when the State files an appeal seeking enhancement of jail
sentence awarded by the Sessions Judge, the jail sentence cannot
be enhanced unless the accused is given an opportunity to defend
it.  The accused is also entitled to pray for his acquittal or award
of lesser punishment.  If the accused, after service of notice fails
to raise this plea then the High Court would be justified in deciding
the State’s appeal on merits which is confined to only for
enhancement of jail sentence. Therefore, there is no ground to
remand the case for rehearing of the appeal. [Paras 17, 23]
[693-F ; 694-E]
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2. Once the Sessions Judge found the appellant guilt

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