Karan Chettri vs State Of Sikkim
- Court
- Supreme Court
2026 INSC 659
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOs. OF 2026
(Arising out of Special Leave Petition (Crl.) Nos.8847-8848 of 2025)
KARAN CHETTRI & ANOTHER ... APPELLANTS
VERSUS
STATE OF SIKKIM … RESPONDENT
J U D G M E N T
NAGARATHNA, J.
Leave granted.
2. The appellants have preferred the present criminal appeals
aggrieved by the final judgment and order dated 12.06.2024
passed by the High Court of Sikkim in Criminal Appeal No.07 of
2022 and Criminal Appeal No.08 of 2022 wherein the High Court
partly allowed the said appeals by setting aside the appellants’
conviction under Section 376(2)(1) of the Indian Penal Code 1860
Signature Not Verified
Digitally signed by
NEETU SACHDEVA
Date: 2026.06.25
15:07:58 IST
Reason:
(hereinafter referred to as “IPC”) but upheld the conviction under
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Section 376D of IPC and Section 450 read with Section 34 of IPC
and further enhanced the sentence awarded from twelve years to
twenty years.
3. Briefly stated, the facts of the case are that a FIR No.01/2021
was registered on 13.01.2021 at Yangang Police Station against the
appellants under Sections 376D read with Section 34 of the Indian
Penal Code, 1860. In the said FIR, it was alleged that on
10.01.2021 at 00:00 hours the mother of the complainant, aged 52
was raped by the appellants herein at her residence.
4. Upon completion of the investigation and submission of
chargesheet, the trial commenced against the appellants before the
Sessions Court in Sessions Trial (Fast Track) Case No.02 of 2021
that ultimately culminated into their conviction vide judgement
dated 19.03.2022 under Section 376D, 376(2)(1) and Section 450
read with Section 34 of IPC. The appellants were consequently
sentenced to rigorous imprisonment for a term of twelve years with
a fine of Rs.10,000/- each for the offence under Section 376D. They
were further sentenced to rigorous imprisonment for a term of
twelve years with a fine of Rs.10,000/- each for the offence under
Section 376(2)(1)of IPC. Lastly, they were sentenced to rigorous
2
imprisonment for a term of seven years with a fine of Rs.5,000/-
each for the commission offence under Section 450 of IPC. Each
of the aforementioned sentences was directed to run concurrently.
5. Aggrieved by the judgment conviction and sentence dated
19.03.2022 of the Sessions Court, the appellants preferred
Criminal Appeal No.07 of 2022 and Criminal Appeal No.08 of 2022
before High Court of Sikkim at Gangtok. By impugned judgment
dated 12.06.2024 the High Court partly allowed the aforesaid
criminal appeals preferred by the appellants and consequently set
aside the order of conviction dated 19.03.2022 of the Sessions
Court under Section 376(2)(1). However, the High Court upheld the
appellants’ conviction under Section 376D of IPC and Section 450
read with Section 34 of IPC and proceeded to enhance their
sentence from twelve years to twenty years. While enhancing the
sentence, the High Court observed that the sentence of twelve years
meted out by the Sessions Court for the offence under Section
376D of the IPC was erroneous as the same was not in accordance
with the statutory requirement of the said section and flew in the
face of mandate of law.
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6. Aggrieved by the judgment of the High Court dated
12.06.2024, the appellants have preferred the present criminal
appeal.
7. We have heard Ms. Manika Tripathy, learned counsel
appearing for the appellants and learned standing counsel for the
respondent-State of Sikkim at length. We have perused the
impugned judgment as well as the material on record.
8. Learned counsel for the appellants submitted both on the
merits of the case as well as on the fact that there was a breach of
Section 386(b)(iii) of the Code of Criminal Procedure, 1973 (Cr.PC)
inasmuch as in appeals filed by the appellants herein against the
judgment of conviction and sentence of twelve years of rigorous
imprisonment imposed under Section 376D of the Indian Penal
Code, 1860 (IPC), the High Court by exercising its jurisdiction
under Section 397 read with Section 401 of the Cr.PC enhanced
the sentence to twenty years. Learned counsel for the appellant(s)
submitted that the expression “but not so as to enhance the same”
in Section 386(b)(iii) has been given a go-bye and consequently the
appellants have become worse off in their own appeals. She
therefore submitted that both the judgment of conviction as well as
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the order of sentence be set aside and alternatively, she submitted
that if this Court is not inclined to interfere with the judgment of
conviction, at least the sentence imposed by the Sessions Court
may be reiterated by setting aside the sentence imposed by the
High Court. Learned counsel for the appellants also placed heavy
reliance on a judgment of this Court in Sachin vs. State of
Maharashtra , (2025) 9 SCC 507 (“Sachin”) with particular
reference to paragraphs 42 to 45 and 63.
9 . Per contra, learned standing counsel for the respondent-State
supported the impugned judgment of conviction and order of
sentence by firstly contending that the Sessions Court had grossly
erred in imposing the sentence of twelve years of rigorous
imprisonment when the minimum sentence under Section 376D
IPC is twenty years. Secondly, in the appeals filed by the appellants
herein, the High Court was convinced that there was no merit so
as not to interfere with the conviction but exercised its jurisdiction
suo motu under Section 397 read with Section 401 of the Cr.PC. In
that regard, the High Court was seeking to ensure that the
minimum sentence to be imposed under Section 376D was
complied with and the gross error of the Sessions Court was
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rectified. He submitted that the procedure contemplated under the
aforesaid provisions was complied with by giving an opportunity to
the accused and they were heard and thereafter the sentence was
enhanced. He further submitted that this is not a case where there
has been enhancement of the sentence in the appeal(s) filed by the
appellants/convict in the sense contemplated in Section 386(b)(iii)
as this is not a case where inadequate sentence has been imposed.
This is a case where the Sessions Court had erred in imposing the
sentence below the minimum sentence prescribed under Section
376D. In order to ensure that there was compliance with Section
376D, the High Court in exercise of its suo motu jurisdiction
enhanced the sentence. Thereby, there was no breach of what was
stipulated under Section 386 (b)(iii) while exercising its appellate
jurisdiction by the High Court. Therefore, the judgment passed by
this Court in the case of Sachin has to be distinguished and the
paragraphs pressed into service by learned counsel for the
appellant(s) cannot be read in all situations including the case at
hand. The said prescription would apply to a case where the
sentence has been correctly imposed on a provision of law under
the IPC but may be on the lower side or inadequate and hence it
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would not cover a case where sentence imposed is below the
minimum prescribed under the provision of the IPC.
10. Learned standing counsel for the respondent-State sought to
distinguish the judgment of this Court in Sachin both on facts as
well as on law. He also supported his arguments by placing reliance
on the judgments of this Court in Sahab Singh vs. State of
Haryana , (1990) 2 SCC 385 (“Sahab Singh”) and Kumar
Ghimirey vs. State of Sikkim , (2019) 6 SCC 166 (“Kumar
Ghimirey”).
11. We have given our anxious consideration to the arguments
advanced at the Bar. It is not in dispute that the Sessions Court
convicted the appellant(s) herein under Section 376D of the IPC.
The said provision reads as under-
“376D. Gang rape- Where a woman is raped by one or
more persons constituting a group or acting in furtherance
of a common intention, each of those persons shall be
deemed to have committed the offence of rape and shall be
punished with rigorous imprisonment for a term which
shall not be less than twenty years, but which may extend
to life which shall mean imprisonment for the remainder
of that person's natural life, and with fine.
Provided that such fine shall be just and reasonable to
meet the medical expenses and rehabilitation of the victim:
Provided further that any fine imposed under this section
shall be paid to the victim.”
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12. The minimum sentence that could be imposed under Section
376D is twenty years. However, the Sessions Court erred in
imposing a sentence of only twelve years when “rigorous
imprisonment for a term which shall not be less than twenty years,
but which may extend to life which shall mean imprisonment for the
remainder of that person’s natural life and with fine.” has been
prescribed. The Sessions Court ought to have complied with the
said prescription and therefore, the sentence could not have been
less than twenty years. But in the instant case the sentence
imposed was only twelve years. Therefore, even in appeals filed by
the appellant(s) herein, on coming to a conclusion that there was
no scope of interference on merits, the High Court sought to rectify
a gross defect in the imposition of sentence by the Sessions Court
by complying with what has been stipulated under Section 376D.
13. In this case, we are concerned with an appeal from a
conviction. In such an appeal, the appellate court can exercise its
powers in three ways, as per clause ( b ) of Section 386CrPC. Clause
( c ) is with regard to an appeal for enhancement of sentence. While
an appeal from a conviction is filed by the accused, an appeal from
an order of acquittal or for enhancement of sentence could be filed
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either by the State or by the complainant or even by the victim
under Section 378 CrPC and in the case of a victim as per the
proviso to Section 372. In the case of an appeal from any other
order i.e. not an order of conviction or acquittal, the High Court
can either alter or reverse such order under clause ( d ). The High
Court also has the power to make an amendment or pass any
consequential or incidental order that may be just or proper in any
of the above situations. However, there are two provisos to Section
386. The first proviso states that the sentence shall not be
enhanced unless the accused has had an opportunity of showing
cause against such enhancement. The second proviso states that
the appellate court shall not inflict greater punishment for the
offence which in its opinion the accused has committed, than
might have been inflicted for that offence by the court passing that
order for sentence under appeal.
14. Some judgments of this Court on the interpretation of Section
386 CrPC may be referred to at this stage.
15. In Sahab Singh , seven appellants were convicted by the
learned Additional Sessions Judge, Sonepat on three counts and
sentenced as follows:
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( a ) rigorous imprisonment for one year under Section 148
IPC;
( b ) rigorous imprisonment for six months under Sections
323/149 IPC; and
( c ) imprisonment for life and a fine of Rs 200 under
Sections 302/149 IPC.
15.1 All the said substantive sentences were directed to run
concurrently. The seven appellants preferred an appeal against the
order of conviction and sentence passed by the trial court. The High
Court while dismissing their appeals clarified that their conviction
were on six counts and altered the fine awarded under Sections
302/149 IPC from Rs.200/- to Rs.5000/- in respect of each
appellant per count i.e. Rs.30,000/- per appellant. Being aggrieved
by the enhancement of fine, the appellant preferred their appeal
before this Court on the question of enhancement only.
15.2 While discussing Sections 374 and 401 CrPC, this Court
in Sahab Singh observed that on a co-joint reading of Sections
377, 386, 397 and 401, if the State is aggrieved about the
inadequacy of the sentence, it can prefer an appeal under Section
377(1) CrPC. The failure on the part of the State to prefer an appeal
does not, however, preclude the High Court from exercising suo
motu power of revision under Section 397 read with Section 401
10
CrPC since the High Court itself is empowered to call for the record
of the proceedings of any court subordinate to it. Sub-section (4) of
Section 401 operates as a bar to the party which has a right to
prefer an appeal but has failed to do so but that sub-section cannot
stand in the way of the High Court exercising revisional jurisdiction
suo motu . But before the High Court exercises its suo motu
revisional jurisdiction to enhance the sentence, it is imperative that
the convict is put on notice and is given an opportunity of being
heard on the question of sentence whether in person or through
his advocate. The revisional 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.
15.3 Discussing the facts of the said case, it was noted in Sahab
Singh that the accused convict had filed their appeals, while no
appeal had been filed by the State against the sentence awarded
by the trial court on the ground of its inadequacy vis-à-vis Sections
302/149 IPC nor did the High Court exercise suo motu revisional
powers under Section 397 read with Section 401 CrPC. If the High
Court intended to enhance the sentence the proper course was to
exercise suo motu powers under Section 397 read with Section 401
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CrPC by 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 fine as this
would be without jurisdiction. On this ground, the appeals were
allowed and the enhanced fine imposed by the High Court set aside
and fine imposed by the trial court was restored and direction was
issued to refund the additional fine, if paid.
16. In Kumar Ghimirey , the appellant therein assailed the
judgment of the Sikkim High Court dismissing his criminal appeal
questioning the order of conviction and sentence passed by the
Special Judge (POCSO Act, 2012) convicting the appellant therein
under Sections 9/10 of the said Act and Section 341 IPC. The
appellant therein was sentenced to undergo simple imprisonment
for a period of seven years and to pay a fine of Rs 50,000/- under
Sections 9/10 of the POCSO Act, 2012 and under Section 341 IPC
the appellant was sentenced to undergo simple imprisonment for
one month by the Special Court. Aggrieved by the judgment of the
Special Court, the accused filed an appeal before the High Court.
The High Court dismissed the appeal and the sentence under
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Sections 9/10 of the POCSO Act was converted into a sentence
under Section 5(m) of the POCSO Act read with Section 6 of the
said Act and the sentence was enhanced from seven years to ten
years with a fine of Rs.5000/-.
16.1 Challenging the enhancement of punishment even when
there was no appeal filed seeking such an enhancement and
contending that the High Court ought not to have enhanced the
sentence, the appellant therein filed the appeal before this Court
in Kumar Ghimirey . While analysing Section 386(b) CrPC, which
deals with an appeal from conviction, this Court noted that the
High Court had enhanced the sentence in the appeal filed by the
accused challenging his conviction. It was observed by this Court
that the High Court generally has the power to enhance the
sentence in an appropriate case. The High Court can also exercise
its powers under Section 401 CrPC which deals with the power of
revision of the High Court in an appropriate case. The High Court
under Section 401 CrPC can exercise any of the powers conferred
on a court of appeal by Sections 386, 390, 391 or a Court of Session
by Section 307 CrPC. It was observed that the High Court under
Section 386(c) could have enhanced the sentence but the said
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course is permissible only after giving notice of enhancement. The
power of the High Court has been accepted and reiterated by this
Court in a large number of cases.
16.2 In this regard, in Kumar Ghimirey , reference was made
to Surjit Singh vs. State of Punjab, 1984 Supp SCC
518 , Govind Ramji Jadhav vs. State of Maharashtra, (1990) 4
SCC 718 and Surendra Singh Rautela vs. State of Bihar ,
(2002) 1 SCC 266 . While discussing these cases, this Court
observed that the High Court had rightly affirmed the conviction of
the appellant therein. On the facts of the said case, this Court
refused to reduce the sentence from seven years to five years as
sought by the accused. However, it set aside the direction of the
High Court insofar as it enhanced the sentence from seven years
to ten years' rigorous imprisonment and the sentence awarded by
the Special Judge i.e. seven years under the POCSO Act and one
month under Section 341 was maintained.
16.3 We find that the above judgment in Kumar Ghimirey was a
case of enhancement of sentence by the High Court in an appeal
filed by the accused and this Court by its judgment maintained the
sentence of seven years imposed by the Special Judge while setting
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aside the direction of the High Court insofar as it enhanced the
sentence from seven years to ten years' rigorous imprisonment.
This Court observed that the High Court enhancing the sentence
from seven years to ten years was not in accordance with the
procedure prescribed.
17. The question for consideration in this case is, whether, in an
appeal against conviction, the appellate court could have directed
enhancement of the sentence in an appeal filed by the accused.
Under clause (b) of Section 386 CrPC, firstly , the appellate court
can no doubt alter the findings and sentence and acquit or
discharge the accused or order him to be retried by a court of
competent jurisdiction subordinate to such appellate court or
committed for trial. Secondly , the appellate court can also alter the
findings but maintain the sentence. Thirdly , the appellate court
can, in an appeal from a conviction, with or without altering the
finding, alter the nature and or the extent, or the nature and
extent, of the sentence but not so as to enhance the same. A plain
reading of this would imply that in an appeal against conviction
which is obviously filed by the accused, the challenge could be
twofold: firstly , it could be against the conviction itself in which
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case there is a challenge to the sentence also; and secondly , the
challenge could be only to the sentence while accepting the
conviction. In other words, the challenge would also be only for
reduction of the sentence. The question is, whether, in an appeal
challenging the conviction and sentence, the appellate court could,
while affirming the conviction, enhance the sentence imposed by
the trial court by directing that the same had to be with reference
to other statutory provisions.
17.1 There is no doubt that the appellate court while maintaining
the conviction can reduce the sentence and grant partial relief to
an accused. But in an appeal filed by the appellant-accused, can
the appellate court not only affirm the conviction but go a step
further and seek to enhance the sentence than what had been
imposed by the trial court? It cannot be lost sight of that in an
appeal filed by the accused, the appellant-accused is, at best,
seeking a reversal of the conviction as well as setting aside of the
sentence and the least that the appellant-accused can expect is
even while the conviction is affirmed, the sentence could be
maintained, if not reduced.
16
17.2 Thus, in an appeal filed by the appellant-accused against
the judgment of the conviction and sentence, can the accused be
left worse off while the conviction is affirmed by the appellate court
exercising appellate jurisdiction by enhancing the sentence? In
such an event, the appellant-accused would be better off, if he
either withdraws his appeal or, not to file an appeal at all!
18. In Sachin , this Court speaking through one of us
(Nagarathna, J.) observed as under:
“44. The right to prefer an appeal is not only a statutory
right but also a constitutional right in the case of an
accused because an accused has a right to not only
challenge a judgment on its merits, namely, with respect
to the conviction and sentence being imposed on him but
also on the procedural aspects of the trial. An accused can
also question procedural flaws, impropriety and lapses
that may have been committed by the trial court in arriving
at the judgment of conviction and imposition of sentence
in an appeal filed against the same. It then becomes the
duty of the appellate court to consider the appeal from the
perspective of the accused-appellant to see if he has a good
case on merits and to set aside the judgment of the trial
court and acquit the accused or to remand the matter for
a retrial in accordance with law or reduce the sentence
while maintaining the conviction or, in the alternative, to
dismiss the appeal.
x x x
53. The distinction between “appellate jurisdiction” and
“revisional jurisdiction” is well known though not well
defined. Ordinarily, appellate jurisdiction involves a
rehearing, as it were, on law as well as on facts and is
invoked by an aggrieved person. Ordinarily, again,
17
revisional jurisdiction is analogous to a power of
superintendence and may sometimes be exercised even
without it being invoked by a party. The extent of revisional
jurisdiction is defined by the statute conferring such
jurisdiction. The conferment of revisional jurisdiction is
generally for the purpose of keeping tribunals subordinate
to the revising tribunal within the bounds of their
authority to make them act according to the procedure
established by law and according to well-defined principles
of justice.
x x x
56. We have examined the scope of powers that can be
exercised by an appellate court under Section 386 CrPC in
juxtaposition with Section 401 CrPC which deal with the
appellate and revisional powers of the High Court,
respectively. We have considered the judicial dicta. On
consideration of the judgments of this Court in Nadir
Khan [ Nadir Khan v. State (UT of Delhi) , (1975) 2 SCC 406
: 1975 SCC (Cri) 622] and Eknath Shankarrao
Mukkawar [ Eknath Shankarrao Mukkawar v. State of
Maharashtra , (1977) 3 SCC 25 : 1977 SCC (Cri) 410] , we
find that even while exercising appellate powers under
Section 377 CrPC, there cannot be exclusion of revisional
jurisdiction of the High Court to act suo motu for
enhancement of sentence in appropriate cases and what is
an appropriate case has to be left to the discretion of the
High Court. Further, the High Court can suo motu call for
the record of proceedings of any inferior criminal court
under its jurisdiction and exercise revisional powers. The
observations of this Court in Sahab Singh [ Sahab
Singh v. State of Haryana , (1990) 2 SCC 385 : 1990 SCC
(Cri) 323] and Govind Ramji Jadhav have to be juxtaposed
in light of their peculiar facts and in the background of the
observations of this Court in Nadir Khan [ Nadir
Khan v. State (UT of Delhi) , (1975) 2 SCC 406 : 1975 SCC
(Cri) 622] and Eknath Shankarrao Mukkawar [ Eknath
Shankarrao Mukkawar v. State of Maharashtra , (1977) 3
SCC 25 : 1977 SCC (Cri) 410] .
x x x
18
59. The trial courts should also be very careful while
passing an order of sentence inasmuch as the sentence
imposed must be concomitant with the charge(s) framed
and the findings arrived at while arriving at a judgment of
conviction. If the charges are proved beyond reasonable
doubt against an accused then, the sentence following a
finding and judgment of conviction must be appropriate to
the nature of the charges which are proved by the
prosecution.”
19. In this case, our focus of attention is whether, in the absence
of any appeal or revision filed by the State, a complainant or a
victim in a particular case and when the appeal has been filed only
by the accused assailing the judgment of conviction and sentence,
the High Court can exercise its revisional jurisdiction while dealing
with an appeal filed by the accused/convict. In other words, when
an accused is seeking setting aside of a judgment of conviction and
sentence, can the High Court, in the absence of there being any
challenge to the same from any other quarter, suo motu exercise its
revisional power and thereby condemn the accused by awarding an
enhancement in his sentence. Even if an opportunity of hearing is
given to such an accused/convict, we do not think that the High
Court can exercise its revisional jurisdiction under Section 401
CrPC while exercising its appellate jurisdiction in an appeal filed
by the accused/convict in the High Court. All that the High Court
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can do is to set aside the judgment of conviction and sentence and
acquit the accused, or while doing so, order for a retrial or, in the
alternative, while maintaining the conviction, reduce the sentence.
In other words, in an appeal filed by the accused/convict, the High
Court cannot suo motu exercise its revisional jurisdiction and
enhance the sentence against the accused while maintaining the
conviction.
20. In this regard, we find that the expression “but not so as to
enhance the same” in sub-clause ( iii ) of clause ( b ) of Section 386
CrPC throws some light, which reads as under:
“ 386. Powers of the appellate court .— *
*
( b ) in an appeal from a conviction—
*
( iii ) with or without altering the finding, alter the nature or
the extent, or the nature and extent, of the sentence, but
not so as to enhance the same;”
Although the said expression “but not so as to enhance the
same” is in the context of sub-clause ( iii ) of clause ( b ) of Section
386, the spirit of the said provision must be understood, inasmuch
as while maintaining the finding of conviction, the High Court
cannot exercise its suo motu revisional jurisdiction under Section
401CrPC and enhance sentence awarded to the appellant-accused.
20
21. We find that having regard to the facts of this case, the
judgment in the case of Sachin cannot be applied mechanically.
In Sachin , the appellant had assailed the judgment of conviction
and sentence and there was no issue with regard to there being
inadequate sentence or a sentence being imposed contrary to the
statutory prescription. It was in those circumstances that relief
was granted in the case of Sachin but in the instant case while
there was a challenge to the judgment of conviction and sentence,
the High Court noted that the sentence imposed was contrary to
what has been stipulated under Section 376D of IPC. The
minimum sentence under the said provision is twenty years but
may extend to life which shall mean imprisonment for remainder
of that person’s natural life and with fine. The Sessions Court
instead of imposing the minimum sentence of twenty years
imposed a sentence of twelve years. There being a breach of the
stipulation under Section 376D of IPC, the High Court while
dismissing the appeals filed by the accused/appellants and
affirming the judgment of conviction also exercised suo motu
revisional powers under Section 401 CrPC to enhance the sentence
awarded to the appellants. The expression “but not so as to
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enhance the same” under Section 386(b)(iii) CrPC cannot, in our
view, come in the way of the High Court exercising its revisional
jurisdiction under Section 401 CrPC in order to comply with
Section 376D of IPC. This is not a case where the appellants
became worse off in their appeals before the High Court. Noting
the glaring error in imposition of the sentence on the appellant
herein, the High Court, in our view, was justified in exercising its
suo motu revisional powers under Section 401 CrPC. Therefore, we
find that the facts and circumstances which emanated in Sachin
are quite distinct from the facts and circumstances of the present
case. Moreover, the High Court enhanced the sentence after
complying with the principles of natural justice while exercising its
suo motu revisional jurisdiction under Section 401 CrPC. Hence,
the judgment in Sachin has to be distinguished from the present
case for the aforesaid reasons. Therefore, the said judgment will
not apply to a case where the Sessions Court on misreading the
provision of the IPC has imposed a sentence below what is
stipulated in the IPC as in the instant case. Hence, we are unable
to apply the ratio of Sachin to the facts and circumstances of the
present case.
22
22. We also observe that although Section 386(b) CrPC does not
empower an appellate court, in an appeal preferred by the accused,
to enhance the sentence, where the sentence awarded by the trial
court is contrary to the statutory mandate and is below the
prescribed minimum punishment, the appellate court’s act of
substituting the illegal sentence with the minimum sentence
prescribed by law is not an “enhancement” in exercise of powers
under Section 386(b). Rather, it amounts to a suo motu correction
of an illegality/error apparent on the face of the record to bring the
sentence in conformity with the mandatory statutory requirement.
Consequently, increasing the sentence from twelve years to twenty
years, as in the instance case, where twenty years is the minimum
punishment prescribed by the statute, was legally permissible
notwithstanding the bar contained in Section 386(b), since the High
Court was merely replacing an illegal sentence with a lawful one
and not exercising appellate powers of enhancement. The accused
has a right to challenge his conviction, but he has no right to insist
upon the continuance of an illegal sentence. Thus, the appellate
court, by raising the sentence to the statutory minimum, is not
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making the sentence harsher by choice but is merely giving effect
to what the law compulsorily required from the outset.
23. The embargo contained in Section 386(b) CrPC against
enhancement of sentence in an appeal preferred by the accused
assumes that the sentence sought to be interfered with is one
lawfully imposed and therefore capable of being protected by the
procedural safeguard against aggravation. However, a sentence
imposed below the statutory minimum is a departure from that
assumption. Such a sentence is not merely inadequate, but it is
one rendered in derogation of the legal mandate and to that extent,
suffers from a jurisdictional infirmity. The accused can acquire no
vested right in the continuance of an order which the law itself does
not sanction.
24. That being so, the High Court, by substituting the sentence
awarded by the trial court with the minimum punishment
prescribed by statute, did not exercise a power of enhancement
under Section 386(b). It did not impose a harsher punishment in
the exercise of appellate discretion. All it did was to discharge its
duty to bring the sentence into conformity with the command of the
statute. The source of such action lies not in the power to enhance,
24
but in the obligation of the court, acting ex debito justitiae , to
correct a patent illegality and ensure that the judgment affirmed by
the judicial process is one which the law authorizes.
25. To hold otherwise would mean that a manifestly illegal
sentence, merely because it was challenged by the convict and not
by the State or the victim, must be perpetuated despite being
contrary to the minimum punishment ordained by Parliament.
Such a construction would elevate a procedural limitation over
substantive legality and permit the appellate process to become an
instrument for preserving an illegality. That, in our view, can never
be the outcome. The prohibition under Section 386(b) cannot be
understood as conferring upon an accused a right to insist upon
the continuance of a sentence which the law forbids. The
substitution of the sentence of twelve years with the mandatory
minimum of twenty years by the High Court, therefore, is not an
enhancement of punishment in the true sense, but a suo motu
correction of an error apparent on the face of the record,
undertaken to give effect to the law as it is and to restore legality to
the sentencing process.
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26. In the circumstances, we have no option but to dismiss the
appeals.
The Appeals are hence dismissed.
………………………………………J.
[B.V. NAGARATHNA]
..……………………………………J.
[UJJAL BHUYAN]
NEW DELHI;
MAY 20, 2026
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