REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.448 OF 2018 (Arising out of S.L.P.(Crl.)No.8087 of 2016)

Bharatkumar Rameshchandra Barot    ….Appellant(s)

VERSUS

State of Gujarat    ….Respondent(s)

                 J U D G M E N T

Abhay Manohar Sapre, J.

1. Leave granted.

2. This appeal is filed by the accused against the

final judgment and order dated 08.10.2015 passed

by  the  High  Court  of  Gujarat  at  Ahmedabad  in

Criminal Appeal (for Enhancement) No.1303 of 2014

whereby the High Court allowed the appeal filed by

the State of Gujarat under Section 377 of the Code

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of Criminal Procedure, 1973 (hereinafter referred to

as “the Code”) and enhanced the sentence imposed

on the appellant (accused) by the Trial Court from

10  years  rigorous  imprisonment  to  imprisonment

for life.

3. Facts of the case lie in a narrow compass so

also  the  issue  involved  in  the  appeal  is  short  as

would be clear from the facts stated hereinbelow.

4. The appellant was prosecuted and eventually

convicted for the offences punishable under Section

302  of  the  Indian  Penal  Code,  1860  (hereinafter

referred to as "IPC") and Section 135 of the Bombay

Police Act(hereinafter referred to as “the B.P. Act”)

by  order  dated  04.09.2014  passed  by  the  3rd

Additional  Sessions  Judge,  Mehsana  (Gujarat)  in

Sessions Case No.71/2012 for committing murder

of the deceased by name - Dilipbhai Ratnaji.  

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5. The Sessions Judge, however, awarded to the

appellant 10 years’ rigorous imprisonment and  fine

of Rs.5000/- and, in default of payment of fine, to

further undergo 5 months' simple imprisonment so

far as offence under Section 302 IPC was concerned

and  so  far  as  for  the  offence  punishable  under

Section  135  of  the  B.P.  Act  was  concerned,  the

appellant  was  awarded  3  months’  simple

imprisonment and fine of Rs.500/-  and, in default

of  payment  of  fine,  to  further  undergo  15  days'

simple imprisonment.  

6. The State  felt  aggrieved by the  award of  the

lesser punishment of  10 years under Section 302

IPC to  the  appellant  as  against  what  is  specified

under  Section  302  IPC  and  filed  criminal  appeal

under Section 377 of the Code, out of  which this

appeal arises, praying therein for its enhancement

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and  make  it  in  conformity  with  the  punishment

specified under Section 302 IPC.  

7. The  appellant  was  served  with  the  notice

(dasti) of the appeal filed by the State. The appellant

(accused), however, did not appear despite service of

dasti notice made on him and nor filed any criminal

appeal  challenging  his  conviction  on  merits.  The

High  Court,  therefore,  appointed  Mr.  U.  Oza,

advocate,  as  amicus curiae to  assist  the Court on

behalf  of  the  accused  (appellant  herein)  for

defending him.

8. By  impugned  judgment,  the  High  Court

allowed  the  State's  appeal  and  enhanced  the

sentence from “10 years” to “life imprisonment” for

the  offence  of  murder  under  Section  302  IPC.  In

other words, the High Court enhanced the sentence

and awarded sentence of “life imprisonment” to the

appellant as provided under Section 302 IPC.  So far

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as  the  imposition  of  fine  was  concerned,  it  was

upheld.

9. It is against this judgment of the High Court,

the appellant (accused) has felt aggrieved and filed

this appeal by way of special leave in this Court.

10.   Heard Mr. Abhishek Singh, learned counsel

for the appellant (accused) and Ms. Mamta Singh,

learned counsel for the respondent-State.

11. Mr.  Abhishek  Singh,  learned  counsel

appearing for the appellant (accused) while assailing

the  legality  and  correctness  of  the  impugned

judgment argued essentially on one point.  

12. Referring  to  Section  377(3)  of  the  Code,

learned counsel urged that the appellant (accused)

was  not  afforded  adequate  opportunity  to  defend

himself  in  the  appeal  filed  by  the  State  for

enhancement  of  the  jail  sentence  and  hence  the

impugned judgment is rendered bad in law having

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been  passed  without  following  the  procedure

provided under sub-section (3) of Section 377 of the

Code.

13. In other words, his submission was that the

appellant  was deprived of  his  right  to  oppose the

appeal and also his right to urge the grounds for his

acquittal  as  provided under  Section 377(3)  of  the

Code.  Learned  counsel  urged  that  it  is  for  this

reason, the enhancement of jail sentence made by

the  High  Court  is  rendered  illegal  and  without

jurisdiction.

14. Learned counsel also urged that sufficient time

was  not  given  to  the  learned  amicus  curiae  to

prepare the case. It was urged that this also caused

prejudice to the appellant.   

15. In  reply,  learned  counsel  for  the  respondent

(State)  supported the reasoning and conclusion of

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the High Court and contended that the appeal has

no merit.

16. Having  heard  the  learned  counsel  for  the

parties and on perusal of the record of the case, we

are  inclined  to  dismiss  the  appeal  as,  in  our

opinion, it has no merit.

17. Coming first to the submission as to whether

there  was  any  non-compliance  with  the

requirements of Section 377(3) of the Code by the

High Court,  in our considered opinion,  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. This we say for the following reasons.

18. In the first place, the High Court served dasti

notice to the appellant (who was respondent before

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the  High  Court).  The  notice  of  the  appeal  was,

therefore,  duly  served  on  the  appellant.  In  other

words, it was also not the case of the appellant that

he was not served or 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.  

19. Second,  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.   

20. Third, the High Court, having found that there

was  no  representation  on  behalf  of  the  appellant

despite  personal  service  effected  on  him,  was

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justified in appointing a lawyer as  amicus curiae to

safeguard the appellant's interest and to assist the

Court as well.

21. Fourth, the amicus curiae had never made any

complaint in the High Court for not giving him more

time  for  preparation  of  the  case.   Even  in  this

appeal,  amicus  curiae did  not  file  any affidavit  to

this effect.  Therefore, this submission raised by the

amicus  curiae is  without  any  foundation  and  is

accordingly dismissed.

22. In  our  considered  opinion,  the  High  Court,

therefore,  ensured compliance with Section 377(3)

of  the  Code  and  we  do  not  find  any  ground  to

interfere in this finding.   

23. 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

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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.  We,  therefore,  find

no ground to remand the case for rehearing of the

appeal.  

24. Now coming to the question of enhancement of

jail  sentence  made  by  the  High  Court,  we  are

inclined to concur with the reasoning of the High

Court. Indeed, we are surprised to find as to how

the  Sessions  Judge  could  award  10  years’  jail

sentence to the appellant for commission of offence

of murder punishable under Section 302 IPC. It is

simply unheard of.

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25. Once the Sessions Judge found the appellant

guilty for commission of the offence of the murder

punishable  under  Section  302  IPC,  the  only

punishment that can be awarded in law is either the

“death penalty” or “imprisonment for life” and the

“fine”.  

26. Section 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”.  

27. Any  punishment  less  than  the  life

imprisonment, as prescribed under Section 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 Section 302 IPC as mentioned above.  

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28.   In the light of the foregoing discussion, we

are of the considered opinion that the High Court

was justified in modifying the jail sentence awarded

to the appellant by the Sessions Judge and rightly

enhanced the sentence by awarding punishment of

“Life  imprisonment” under Section 302 IPC to the

appellant  (accused)  in  place  of  “10  years  jail

sentence awarded by the Sessions Judge.

29.   No other  point  was argued by the  learned

counsel for the appellant except the one dealt with

by  this  Court  supra and  we  have  not  found  any

merit therein.

30. The  appeal  thus  fails  and  is  accordingly

dismissed.

………...................................J. [R.K. AGRAWAL]

                                     …...……..................................J.

        [ABHAY MANOHAR SAPRE] New Delhi; March 26, 2018  

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