Case Note & Summary
This review petition arose from a criminal appeal before the Supreme Court. The applicant, Sawal Das, was originally tried with his father Jamuna Prasad and step-mother Kalawati Devi for the murder of his wife Chanda Devi and for disposing of her body under Section 201 of the Indian Penal Code. The Trial Court convicted all three accused under Section 302 read with Section 34 IPC and sentenced each to rigorous imprisonment for life. The Trial Court also convicted the applicant and his father under Section 201 IPC but did not impose any separate sentence for that offence, observing that they had already been sentenced under Section 302/34 IPC. On appeal, the Patna High Court set aside the convictions of Kalawati Devi for both offences and ordered her release. It partly allowed the appeal of Jamuna Prasad by setting aside his conviction under Section 302/34 IPC but maintaining his conviction and sentence under Section 201 IPC. For the applicant Sawal Das, the High Court altered the conviction from Section 302/34 IPC to Section 302 IPC simpliciter and maintained the life sentence, while also purporting to maintain his conviction and sentence under Section 201 IPC, erroneously stating that the sentences would run concurrently as decided by the court below. In reality, no separate sentence under Section 201 IPC had ever been imposed on the applicant. The applicant then appealed by special leave. The Supreme Court refused leave to contest any point beyond the correctness of his conviction and sentence under Section 302 IPC. After hearing, the Supreme Court set aside the applicant's conviction under Section 302 IPC due to uncertainty regarding his individual role in the murder, but affirmed his conviction under Section 201 IPC. Since no separate sentence had been fixed for Section 201 IPC, the Supreme Court imposed a sentence of seven years rigorous imprisonment and a fine of Rs. 1,000, with six months further imprisonment in default of payment. In the review petition, the applicant raised a technical objection: because the State had not filed an appeal against the failure of the Trial Court or High Court to specify a sentence under Section 201 IPC, the Supreme Court could not now pass any sentence under that section. He also contended that he must be deemed not to have been sentenced at all. The Supreme Court rejected these contentions, relying on Jayaram Vithoba v. State of Bombay, which held that the power to pass a sentence is preserved to the appellate court expressly by Section 423(1)(d) CrPC, and that an award of sentence is consequential on and incidental to the affirmance of a conviction. The Court further noted that the earlier orders showed the applicant was convicted under Section 201 IPC and that his sentence was ordered to run concurrently with the life sentence, but the period was not fixed; once the life sentence was set aside, the period for the Section 201 sentence had to be fixed as a necessary consequence. The Court also heard the applicant again on the question of sentence and found no sufficient grounds to revise the quantum. The review petition was dismissed.
Headnote
A) Criminal Procedure - Sentencing - Appellate Court's Power to Impose Consequential Sentence - Code of Criminal Procedure, 1898, Section 423(1)(d) - The review applicant was convicted under Section 201 IPC but trial court imposed no separate sentence and High Court erroneously assumed sentence had been imposed; Supreme Court held that power to pass sentence is preserved to appellate court expressly by Section 423(1)(d) CrPC, which allows any amendment or consequential or incidental order that is just and proper; award of sentence is consequential on affirmance of conviction and just and proper. Held that Supreme Court could pass sentence despite no State appeal. B) Criminal Procedure - Sentencing - Need for Separate Sentence for Each Conviction - Indian Penal Code, 1860, Sections 201 and 302; Code of Criminal Procedure, 1898, Section 423(1)(d) - When trial court convicted under Section 201 but did not fix period, and High Court ordered concurrent sentence with life sentence under Section 302, that was erroneous because sentence could not be concurrent for whole period; once life sentence under Section 302 was set aside, period for Section 201 sentence had to be fixed as necessary consequence. Held that sentence of seven years rigorous imprisonment and fine of Rs. 1,000 with six months default imprisonment was proper. C) Judicial Precedent - Sentencing - Duty to Impose Sentence on Conviction - Bombay Prevention of Gambling Act, 1887, Sections 4(a) and 5 - The Supreme Court followed Jayaram Vithoba v. State of Bombay, which held that when a person is tried and convicted, it is duty of court to impose sentence; power to pass sentence under those circumstances is derived from law and preserved to appellate court by Section 423(1)(d) CrPC. Held that the proposition applies to the present case and supports imposition of sentence.
Issue of Consideration
Whether the Supreme Court could pass a sentence under Section 201 IPC when the trial court and High Court had not fixed a separate sentence, and whether the absence of a State appeal against the failure to pass sentence precluded the appellate court from imposing sentence.
Final Decision
The review petition was dismissed. The Supreme Court found no sufficient grounds for revising the sentence of seven years rigorous imprisonment and a fine of Rs. 1,000/-, and in default of payment of fine imprisonment for a further term of six months under Section 201 IPC. The Court held that the consequential order imposing a sentence which by inadvertence was not passed by the High Court could be passed by the Supreme Court, and that the period of sentence under Section 201 IPC had to be fixed as a necessary consequence after setting aside the life sentence under Section 302 IPC.
Law Points
- Power to pass sentence is preserved to appellate court expressly by Section 423(1)(d) CrPC
- when conviction affirmed in appeal but no sentence awarded by trial magistrate
- award of sentence is consequential and incidental to affirmance of conviction
- appellate court can make consequential or incidental order that is just and proper
- separate sentence ought to be passed for each offence even if sentences concurrent
