NATIONAL LAW INSTITUTE UNIVERSITY
CRIMINAL LAW
A Project on:
Appeal by the State Government against sentence (SECTION 377)
SUBMITTED TO: SUBMITTED BY:
Ms. DIVYA SALIM AKSHEY JOSE
ASST. PROFESSOR 2013 [Link] 39
Acknowledgement
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I would like to take this opportunity to thank all the people who have helped me in making this project. First and
foremost I would like to thank Prof Divya Salim for giving me this opportunity to make a project on such an
interesting topic. Last but not the least I would like to thank God for being with me throughout the course of this
project and helping me make this project a successful one.
Contents
Introduction................................................................................................................................4
Background ...............................................................................................................................5
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Method of Writing .....................................................................................................................6
Research Questions ...................................................................................................................6
Scope and Limitations ...............................................................................................................7
Who has the right to appeal against inadequacy of the sentence?..........................................7
Can an appeal be made against the sentence when accused released on probation?.............8
Can the High Court enhance the sentence in the absence of an appeal by the state?.............9
Can the High Court enhance the sentence without giving notice to the victims?..................9
Can the state appeal to the enhancement of sentence reduced by the High Court?.............10
Constitutionality of Section 377..............................................................................................10
Conclusion...............................................................................................................................12
Bibliography............................................................................................................................13
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APPEAL BY THE STATE GOVERNMENT AGAINST SENTENCE.
Introduction
A justice system that works is one where mistakes can be easily, and fairly painlessly, corrected. The worst
mistakes are wrongful convictions, but wrong sentences can also have devastating consequences on peoples
lives. From the viewpoint of an accused, if individuals are sentenced to more years in prison than is
proportionate for their crimes, or is sentenced to death in case of a life imprisonment the harm done to them is
immense.
At the same time from the victims perspective, if the convict gets a lesser sentence instead of an enhanced
sentence, or a person who should have been given a death sentence gets away with a life imprisonment, the
administration of justice is not fair to the victim.
'Let punishment fit the crime' is one of the main objects of the sentencing policy. To achieve this object, the Code
of Criminal Procedure empowers the High Court to enhance the sentence in appropriate cases while the sentence
awarded by the Subordinate Courts is grossly inadequate or unconscionably lenient or 'flea-bite' or is not
commensurate with the gravity of the offence.1
Sentences which are overturned and enhanced get less publicity than wrongful convictions, and probably inspire
less publicity and attention. But disproportionate sentences are unjust and there must be an effective means of
appealing such sentences if the system is to retain credibility.
Background
In any jurisdiction, the system of criminal law defines certain acts as illegal, meaning that they are viewed as
sufficiently damaging to society to merit intervention by the state when they are committed.
It also sets out a structure by which the state determines whether illegal acts have been committed, and
administers punishments for these acts. In India, the Magistrates have the primary responsibility for determining
1 Govind Ramji Jadhav Vs. The State of Maharashtra [1990] INSC 80 (7 March 1990)
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whether and which illegal acts have been committed and administering the appropriate punishments. These
courts operate within a wider civil and criminal courts structure which also includes the Sessions Court, High
Court and the Supreme Court.
Scrutiny and oversight of the work of the lower courts is carried out by higher courts, through the appeals
process. Appeals are thus an integral element of the system of administration of criminal justice, and a fair and
effective appeals process is a prerequisite for a fair and effective legal system.
The function of an appeals system within any institution can be described as concerning: the supervision of
inferior decision-makers by superior ones, with a view to providing the values of accuracy, fairness, consistency,
and a mechanism for the generation of rules.2.
In line with this definition, the criminal appeals system can be said to have two main purposes - The first purpose
is the private one of doing justice in individual cases by correcting wrong decisions. The second is the public one
of engendering public confidence in the administration of justice by making those corrections and in clarifying
and developing the law.3
Method of Writing
This project involves a slightly different research method. There is very little literature on the concerned topic,
hence I would be discussing and analysing the various questions involved regarding this topic through various
High Court and Supreme Court judgements. Therefore, most of the research I will carry out in this project will be
derived from analyses of previously decided case laws, and the Law Commission reports that exist on the point.
Research Questions
2 Richard Nobles and David Schiff, The right to appeal and workable systems of justice, 2002 ModernLR 65
3 Lord Justice Auld, Access to Justice, 2001 Review of the Criminal Courts of England and Wales.
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1. Who has the right to appeal against inadequacy of the sentence under s.377?
2. What is the jurisdiction of the High Court and Supreme Court regarding s.377?
3. What is the constitutionality controversy regarding s.377?
Scope and Limitations
For better understanding the scope and limitation the relevant provision is as follows:
377. Appeal by the State Government against sentence.
(1) Save as otherwise provided in sub- section (2), the State Government may, in any case of conviction on a trial
held by any Court other than a High Court, direct the Public Prosecutor to present an appeal to the High Court
against the sentence on the ground of its inadequacy.
(2) if such conviction is in a case in which the offence has been investigated by the Delhi Special Police
Establishment, constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946) or by any other
agency empowered to make investigation into an offence under any Central Act other than this Code, 1 the
Central Government may also direct] the Public Prosecutor to present an appeal to the High Court against the
sentence on the ground of its inadequacy.
(3) 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
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enhancement and while showing cause, the accused may plead for his acquittal or for the reduction of the
sentence.
Cr PC (Amendment) Act, 2005:
Section 377 has been amended so as to permit the filing of an appeal in the Court of Session instead of the High
Court on the ground of inadequacy of sentence passed by a Magistrate. This amendment is intended not only to
make it easier for the administration to prefer appeals against unduly lenient sentences by Magistrates but will
also deter the latter from passing sentence that are grossly inadequate.
Who has the right to appeal against inadequacy of the sentence?
The right to appeal against inadequacy of the sentence has been given only to the State or the Central
Government and not to the complainant or any other person. However, the complainant or any other person can
move the revisional Court in revision for this purpose and the revisional Court, i.e., the High Court or the Court
of Session, as the case may be, may exercise its revisional jurisdiction and decide to enhance the sentence. It may
also decide to act suo motu and enhance the sentence.
Scheme of Section 377, which provides for right of appeal to the State, is entirely different from the right of
appeal conferred upon a victim under the proviso to Section 372 of the Code. Under the scheme of Section 377
not only the State can file an appeal based upon inadequacy of sentence, but even the accused can plead for his
acquittal or for reduction of the sentence as contemplated under Section 377(3) of the Code. There is, however,
no provision in the entire Code empowering the State/Prosecution to file an appeal against an order imposing
inadequate compensation.4
This section also does not provide for any period of limitation or any other qualification or condition for
presentation of such an appeal.
Can an appeal be made against the sentence when accused released on probation?
State Of Kerala vs Sherin (2005 CriLJ 4696)-
The plain language of Section 377(1) makes it clear that the State Government can file an appeal to the High
Court against the sentence on the ground of its inadequacy". In a case where the conviction is recorded by the
trial Court but instead of awarding sentence of imprisonment the convict is released on probation under the
provisions of the relevant special law then it is a case where no sentence at all has been awarded and as such the
provisions of Section 377(1) are not attracted. So when an accused is convicted but released on probation the
State cannot file an appeal under Section 377(1) of Cr.P.C.
4 Bhavuben Dineshbhai Makwana vs State Of Gujarat & Others Criminal Appeal No. 238 of 2012
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The appeal under Section 377(1) can only be confined to a question of adequacy of sentence, in such an appeal
Court is not competent to alter the conviction of the accused. For this purpose, it has to move revisional Court
through revision petition.
Can the High Court enhance the sentence in the absence of an appeal by the state?
Nadir Khan vs. The State (Delhi Administration) (1976 AIR 2205)-
The High Court, as an effective instrument for administration of criminal justice, keeps a constant vigil and
wherever it finds that justice has suffered, it takes upon itself as its bounded duty to suo motu act where there is
flagrant abuse of the law. The character of the offence
and the nature of disposal of a particular case by the subordinate court prompt remedial action on the part of
the High Court for the ultimate social good of the community.
In a given case of public importance, the High Court reacts to public concern over the problem and may act
suo motu on perusal of newspaper reports disclosing imposition of grossly inadequate sentence upon
such offenders.
Can the High Court enhance the sentence without giving notice to the victims?
Sahab Singh and Others vs State Of Haryana (1990 AIR 1188)-
Rules of natural justice as also the prescribed procedure require that the sentence imposed on the accused cannot
be enhanced without giving notice to the appellants and the opportunity to be heard on the proposed action.
Before the High Court can exercise its jurisdiction to enhance the sentence, it is imperative that the convict is put
on notice and given an opportunity of being heard on the question of sentence either in person or through his
advocate. The jurisdiction cannot be exercised to the prejudice of the convict without putting him on guard that it
is proposed to enhance the sentence imposed by the Trial Court.
If the High Court was minded to enhance the sentence, the proper course was to exercise issuing notice of
enhancement and hearing the convicts on the question of inadequacy of sentence.
Without following such procedure it was not open to the High Court in the appeal filed by the convicts to
enhance the sentence by enhancing the fine. The High Court clearly acted without jurisdiction.
Can the state appeal to the enhancement of sentence reduced by the High Court?
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Babu Singh vs Reshampal Singh-
The accused was sentenced to death by the trial Court. On appeal, The High Court while affirming the conviction
has reduced the sentence to life imprisonment.
The State Government preferred an appeal against the judgment of the High Court requesting the Supreme Court
for enhancement of sentence, i.e., restoration of death sentence. Dismissing the appeal, the Supreme Court found
no reason to interfere with the judgment of the High Court which was well reasoned.
Constitutionality of Section 377
It would clearly by violative of Article 21 of the Constitution of India to induce or lead an accused to plead guilty
under a promise or assurance that he would be left off lightly and then in appeal or revision to enhance the
sentence. This problem was raised and discussed in the following case:
State of Karnataka v. Benoy Thomas (1997 CriLJ 1225)-
This is the case where the trial Court has convicted the accused under S. 304-A, IPC and has sentenced the
accused till rising of the Court and to pay a fine of Rs.5,000/-, in default to undergo S.I. for six months. The State
has challenged the sentence relying on a judgment of Supreme Court, in that judgment it has found fault in
Court's rendering flea bite sentence.
Enhancement or imposition of sentence in revision or appeal after the accused had plea-bargained for a lighter
sentence or mere fine in the trial Court, held, would not be reasonable, just or fair and thereby offend Art. 21.
Proper course in such instances is to order retrial giving opportunity to the accused to defend himself.
It is obvious that by reason of plea-bargaining, the appellant pleaded guilty and did not avail of the opportunity to
defend himself against the charge, which is a course he would certainly not have followed if he had known that
he would be let off with a mere sentence of fine but would be sentenced to imprisonment. It would be clearly
violative of Art. 21 of the Constitution to induce or lead an accused to plead guilty under a promise or assurance
that he would be let off lightly and then in appeal or revision, to enhance the sentence. Of course, it does not
suggest that the Court of Appeal or Revision should not interfere where a disproportionately low sentence is
imposed on the accused as a result of plea-bargaining. But in such a case, it would not be reasonable, fair and just
to act on the plea of guilty for the purpose of enhancing the sentence. The Court of Appeal or Revision should in
such a case, set aside the conviction and sentence of the accused and remand the case to the trial Court so that the
accused can, if he so wishes, defend himself against the charge and if he is found guilty, proper sentence can be
passed against him.
HELD-
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Set aside the order of conviction and sentence passed against the appellant and remand the case to the Court of
the Judicial Magistrate 1st Class, Chittradurg, so that the appellant may be tried in accordance with law and if he
wishes to defend himself, he should have proper and adequate opportunity to do so. While passing this order,
court made it clear that we should not be taken to have expressed any opinion on the merits of the case against the
appellant.
If the appellant is found guilty as a result of the trial, the Judicial Magistrate may impose a proper sentence upon
him and if on the other hand, he is found not guilty, he may be acquitted.
Conclusion
The State Government or the Central Government, may direct a public prosecutor to present an appeal to the
High Court against a sentence passed by a lower court on the grounds of its inadequacy. The High Court then
provides the accused with a fair opportunity of showing cause against such enhancement of sentence and also
provides the accused with an opportunity to plead for acquittal or reduction of sentence as well.
This section was enacted keeping in mind the position of the victims of crime, in case the sentence given by the
court was extremely inadequate, and quoting the Law Commission to show the object of this section is
appropriate, It may be noticed that although Section 417 permits the State Government to appeal against an
order or acquittal, it does not permit any appeal against a conviction when the punishment may be grossly
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inadequate. Any error in sentencing can be remedied only by the exercise of revisional powers of the High Court.
This is somewhat unsatisfactory. There seems no reason why the State Government should not appeal against an
inadequate sentence; nor why such an appeal cannot be handled by ordinary Courts of appeal.
In such a situation, where the sentence is inadequate, another remedy lies to the victims of crime, that being of
revision. The High Court can, in exercise of its revisional jurisdiction, call for records of any case it finds
inadequately dealt with and enhance the sentence after having had given opportunity to the accused to defend
himself.
Bibliography
Book Sources
Criminal Law- III, Course Material.
41st Indian Law Commission Report.
Internet Sources
[Link] Web.14. Sept.2016
[Link] Web. 14. Sep.2016
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