Ex-parte enhancement of sentence against statutory mandate; accused should be heard first: Supreme Court

The Supreme Court has held that ex-parte enhancement of sentence without granting reasonable opportunity to the accused is unsustainable in the eyes of the law [Krishnan and Another v. State by the Deputy Superintendent of Police and Another]. .A Division Bench of Justices Sanjiv Khanna and Bela M Trivedi ex-parte enhancement of sentence goes against the statutory mandate under Section 401(1) and first proviso to Section 386 of the Code of Criminal Procedure, 1973."Ex parte enhancement of sentence is against the statutory mandate of the law as delineated in the conjoint reading of Section 401(1) and first proviso to Section 386 of the Code of Criminal Procedure, 1973. These sections adumbrate an opportunity of showing cause before enhancement of sentence in criminal revision," the Court held.The Court was hearing an appeal against an order of the Madras High Court, where the Court had, in the absence of any representation on the part of the appellants, enhanced the sentences imposed on the appellants for offences under Sections 341 [punishment for Wrongful Restraint], 294(b) [sings, recites or utters any obscene songs], 506 [Criminal Intimidation] and 447 [punishment for criminal trespass] of the Indian Penal Code 1860.BackgroundOn December 4, 2012, an order of sentence against the appellants was passed by the Principal Sessions Judge, Vellore, which was later challenged in 2013 by the appellants before the Madras High Court.The revision application of the appellants came up for hearing after almost 5 years on October 24, 2018, when the the High Court chose to enhance the sentence of the appellants in the absence of any representation on behalf of appellants.This led to the appeal before the Supreme Court.Supreme Court verdictThe Supreme Court relied upon its decision in Parveen v. State of Haryana, to hold that where no legal representation was made on behalf of the appellants, the High Court ought to have appointed an Amicus Curiae."The impugned order mentions that the notice has been served to the appellants herein and their names have been printed in the cause list but there was no representation on their behalf. There is lack of clarity on when the notice was actually served and whether the appellants were informed that the criminal revision will be taken up for final hearing," the apex court observed.The High Court's order of enhancement of sentence of the appellants was passed 'ex-parte', and is against the statutory mandate enshrined under the CrPC, the top court said.The Court also heavily relied upon its decision in Govind Ramji Jadhav v. State of Maharashtra to observe that the High Court should have given the accused-appellants a reasonable opportunity of showing cause.While quashing and setting aside the order of the Madras High Court, the Supreme Court observed:"...it is apparent that it is only the counsel for the petitioner and the State were heard. The court did not have the benefit of the arguments on behalf of the Appellants. In the given fact, in our opinion, the High Court was wrong in not appointing an Amicus Curiae. This being an accepted and admitted position, we quash and set aside the impugned order dated October 24, 2018..."The Court then remanded the matter back to the High Court with a direction to decide the revision petition afresh. It also directed the appellants as well as respondents are directed to appear before the High Court on December 17 this year, when the date of hearing will be fixed.Advocate-on-Record A Karthik, advocates V Karthikeyan, Saaketh Kasibhatla and Smriti Suresh appeared for the appellants. Senior Advocate Colin Gonsalves, Advocate-on-Record Satya Mitra and advocate Shiyas KR appeared for the respondents..[Read Judgment]