The attracted. The High Court of Kerala
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.
Where the trial Court has recorded conviction of the accused but instead of awarding sentence of imprisonment, allowed him to be released on probation, there is no question of appeal for enhancement of the sentence as no sentence has been passed at all and therefore the provisions of Section 377 (1) are not attracted.
The High Court of Kerala in the case of State of Kerala v. Sherin, also expressed a similar view and observed that when a person is found guilty of an offence and thereafter released on probation, this was not a case in which a person was sentenced to suffer any punishment. Therefore, there was no question of the sentence being inadequate. In such cases, the State could not file appeal under Section 377 (1),’ Cr. P.C. The remedy available to the State is to challenge the order of release on probation under Section 11 (2) of the Probation of Offenders Act, 1958.
While enhancing the sentence in appeal or revision, the Court must record reasons for considering that the sentence awarded by the trial Court was inadequate and therefore needed to be enhanced in the interest of justice. The accused should also be given opportunity to be heard not only on the enhancement of sentence but also against his conviction itself.
It has been held that investigation of offences under the Customs Act does not fall under Section 377 (2) and hence an appeal for enhancement of sentence at the instance of State Government is maintainable.
Where an investigation for an offence under Section 33 of the Forest Act was conducted by a Forest Officer under the said Act, the High Court rejected the appeal on the ground that only the Central Government was competent to prefer appeal and therefore, the order of the High Court was not proper.
An appeal under Section 377 must be filed by the State within a period of 60 days and the contention of the State that it was under a mistaken belief that period of limitation is ninety days would be no excuse for condonation of the delay.
The provisions of Section 377 apply only in case of appeal for enhancement of sentence on the ground of inadequacy. Therefore, the prosecution, i.e., State cannot ask for conviction for a different offence with higher punishment. For this purpose, it has to move revisional Court through revision petition.
Where appeal against the order of acquittal was not filed under Section 378 but filed under Section 377 challenging adequacy of sentence alone, it was not open for the State to argue in the said appeal that accused ought to have been convicted under Section 302, I.P.C.
In Prem alias Santosh v. State of Maharashtra, three persons were brutally injured in a road-side robbery, and two of them died shortly afterwards. The Bombay High Court enhanced the punishment and sentenced the main accused to death holding his culpability as gravest and brutality of the highest degree, and any leniency might risk the life of others.
In Babu Singh v. Reshampal Singh, the accused was sentenced to death by the trial Court. On appeal, the High Court reduced the sentence to one of imprisonment for life after due consideration of the case.
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.