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Notice For Enhancement of Sentence - Moulding The Relief

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  • Notice For Enhancement of Sentence
    In B.K Chandrashelaran v. State of kerala an appeal by special leave was filed by a person convicted and sentenced by the High Court under various sections of the IPC. The Supreme Court, while hearing the appeal, took a Prima Facie view that the sentence awarded by the High Court needed to be enhanced and, therefore, notices were issued by the Court for enhancement of the sentence. The petitioner challenged the jurisdiction of the Supreme Court to issue such a notice in the absence of an appeal by the State Government on the question of sentence. The Court held that since the High Court had the power to issue notice for enhancement of sentence even in the absence of an appeal by the State Government, the appellate power available to the Supreme Court under Article 136 could not be restricted.

    The Court held that as the appellate authorities enjoy all the powers available to lower authorities and in view of the fact that the power under Article.136 was plenary in character, the Supreme Court was competent to issue a notice for enhancement. In any event, the Court held, such a notice could be justified under Article 142 of the Constitution, if the Court considered that such a notice was required to do. complete justice between the parties.

    Moulding The Relief
    In exercise of its powers under Articles 136 and 142, the Supreme Court can, in appropriate cases and in the interests of justice, mould the relief while disposing of a special leave petition or an appeal arising therefrom.

    In Rupan Deol Bajaj v. Kanwar Pal Singh Gill, the High Court had in the exercise of the powers under Section 482 of the CrPC quashed the first information report and the complaint filed by the petitioner. The police had submitted a final report in the matter recommending the discharge of the accused-respondent and the accused had been discharged. In a special leave petition, the Supreme Court came to the conclusion that the High Court had wrongly quashed the complaint. The Court further held that the order of discharge, which did not contain any reasons, was also liable to be set aside.

    Ordinarily, the Court after setting aside the order would have remanded the matter back to the Magistrate for passing an order afresh. But considering the fact that the case was pending for seven years at the threshold stage itself and remanding the matter would cause further delay, the Court itself scrutinised the police report and held that the respondent was wrongly discharged. As a result, the Court directed the Chief Judicial Magistrate Chandigarh to take cognizance upon the police report in respect of the offences under Sections 354 and 509 of the IPC and try the case himself.

    The Court has further held that it had the power to take note of the circumstances which had cropped up during the pendency of the appeal under Article 136 for granting, denying, moulding the relief to be given to a party in an appeal for meeting the ends of justice. The Court, therefore, in the facts of a case, held that due to subsequent events, the respondent landlords had become disentitled to the order of eviction.

    Sometimes, the Court may grant leave in the matter on the question of law alone and make it clear that the relief granted by the High Court by the impugned order would not be interfered with in the special facts of the case.

    In Taherakhatoon (D) by LRs v. Salambin Mohammad, the Courtdeclared the law by holding that the High Court while dealing with the second. appeal under Section 100 CPC erred in not framing a substantial question of law and that it also erred in interfering with a pure question of fact relating to. the genuineness of an agreement. Even while doing so, the Court held that in the peculiar facts and circumstances of the case, it was not a fit case for interference in exercise of discretion under Article 136.

    In K.L.E. Society v. Dr R.R.Patil, the Court, while declining to interfere with the decisions of the Education Appellate Tribunal and the High Court that the respondent Principal was not to be treated as having taken voluntary retirement and dismissing the appeal of the management with costs, nevertheless substituted the direction for reinstatement in service with a direction. to pay compensation to the tune of three years' salary

    Some Miscellaneous Cases Dealing With The Practice of:
    (a) The Supreme Court would not interfere with the long-standing interpretation by the High Court of a State legislation.

    (b) In hearing an appeal arising out of special leave limited to the question of sentence, the Supreme Court would not permit the appellant to go behind the findings of fact recorded by the High Court. But on admitted facts the Court can reconsider if a particular offence has been made out.

    (c) The Court can, while dismissing the special leave petition, impose costs on the Petitioner. In the undernoted case the Court found that tate had filed a petition, which was an abuse of the process of law and which was filed to sabotage the implementation of the orders of the Court. The Court while awarding costs of Rs 10,000, directed that all the persons responsible for taking a decision to the special leave petition and the Counsel who advised the Government to file the special leave petition should pay the costs on a pro rata basis.

    (d) In an exceptional case, where the filing of the special leave petition was an abuse of the process of the Court in as much as number of proceedings had been taken by the petitioner, the Court, while dismissing the petition, directed the Registry of the Court not to entertain any further application/petition arising out of the same cause of action and for the same reliefs.

    (e) The Court in a special leave petition may direct the parties to consensual arbitration. In Punjab State Electricity Board v Ludhiana Steel (P) Ltd., the Court passed an order referring the parties to- arbitration. The award was sent to the Court. It was stated by the appellant that the award must be sent to the civil court, which must decide whether the award must be made a rule of the court. The Supreme Court rejected the plea and held that since the award was directed to be sent to the Supreme Court, its acceptance or rejection was within the competence of the Court. The Court after considering the objections and submissions made by the appellant made the award the rule of the Court and ordered that the same be treated as a decree in the suit between the parties These days, the practice of the Court appears to be to refer the parties to the lower courts to challenge the award.

    (f) In another case, where the question was of rent payable to the petitioner for requisition of his premises of the Petitioner, and there was a considerable delay in the decision due to various reasons, the Supreme Court directed the Solicitor General to make a report as to the quantum of rent. The Solicitor General made a report fixing the rent and also indicated that interest be awarded The report, in so far as the interest was concerned, was challenged the respondent State. The Supreme Court observed that the. Court ad appointed the Solicitor General to assist it and it was for the Court alone to be satisfied about the same. The Court accepted the report and disposed of the appeal by making the report a decree of the Court.

    (g) In the under noted case, the State preferred an appeal against acquittal of the respondent. The Court affirmed the judgment of the High Court. The Court upheld the view that the respondent, a Police Sub Inspector, had not exceeded the right to private defence while he caused the death of the deceased and was, therefore, entitled to acquittal. However, it appears that the respondent had made an offer to compensate the family members of the deceased. Therefore, the Court directed the respondent to pay a sum of Rs 5 lakhs to the family members of the deceased.

    (h) The Supreme Court has held that it is not open to the respondent (as in this case) to blow hot and cold, i.e attacking one part of the order of the High Court as erroneous and untenable and attempting to sustain the other part as well founded on sound reasoning.

    (i) In tax matters, the Court has taken a view that if a number of petitions are decided by a High Court by the same order, it was impermissible for the revenue to prefer special leave petitions in a few matters leaving the others to become final, until a proper explanation is given for the same. However, the Court has held that it was for the Court to decide whether to entertain an appeal or not in case the revenue (the Sales Tax Department in this case) chose not to file an appeal against the earlier decisions of the High Court. The Court has held that when the question was of public importance, the appeal would not be dismissed on the preliminary of maintainability on the ground that no appeal was preferred against the earlier decisions of the High Court which were followed in the present case.

    J) The Court has further held that once a special leave petition filed against an order of the High Court had been withdrawn without obtaining liberty to file another petition, a fresh special leave petition against the same order would not be maintainable.

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