The Hon’ble Supreme Court, today, i.e. on 22nd April 2019, in the matter of Kumar Ghimirey v. The State of Sikkim, pronounced that where no appeal for enhancement of sentence has been filed, in an appeal filed by the accused against the conviction, the Appellate Court cannot enhance the sentence if the accused has not been given an opportunity of showing cause against such enhancement.
The Hon’ble Supreme Court observed that:
In an appeal against conviction, for enhancement of sentence, the Appellate Court can exercise the power of enhancement. The Appellate Court in an appeal for enhancement, can enhance the sentence also. The proviso to Section 386, further, provides that the sentence shall not be enhanced unless the accused had an opportunity of showing cause against such enhancement. (Para 11)
In an appeal filed by the accused, against conviction, the Appellate court cannot enhance the sentence. However, if the appellate court exercises its revisionary power, enhancement is permissible. But even in such a case, enhancement is permissible only after the accused is given an opportunity of showing cause against such enhancement. (This inference has been drawn on the basis of Para 12)
If the appellate court while enhancing the sentence, in an appeal against conviction by the accused, does not give the accused, an opportunity of showing cause against such enhancement, then such judgement is not in accordance with the procedure prescribed and is liable to be set aside. (This inference has been drawn on the basis of Para 15)
Copy of judgement: Judgement_22-Apr-2019