Holding

An appellate court cannot enhance the sentence in an appeal filed by the accused while maintaining the conviction; enhancement is permissible only in an appeal filed by the State, victim or complainant and after the accused is given an opportunity to be heard.

Summary

The appellant was convicted under the POCSO Act and IPC for penetrative sexual assault on a four‑year‑old girl and sentenced to seven years' rigorous imprisonment. In his appeal against conviction, the High Court affirmed the conviction but, finding that the trial court had overlooked aggravated provisions, issued a show‑cause notice and remitted the case to the Special Court for a higher sentence, ultimately imposing life imprisonment. The appellant challenged this enhancement, arguing that a court hearing an appeal filed by the accused cannot increase the punishment. The Supreme Court examined the scope of Sections 386 and 401 of the CrPC, the distinction between appellate and revisional jurisdiction, and the constitutional principle of no reformatio in peius. It held that an appellate court may not enhance a sentence in an appeal filed by the convict absent a separate appeal by the State, victim, or complainant and without a hearing. Consequently, the Court set aside the High Court and Special Court orders, restored the original seven‑year sentence, and ordered the appellant's immediate release.

Issues considered

Can a High Court, exercising appellate jurisdiction in an appeal filed by the convict, enhance the sentence without a State, victim or complainant appeal?
Does the High Court have suo motu revisional power to increase the sentence in such circumstances?
What is the correct interpretation of Section 386( b)(iii) CrPC regarding enhancement of sentence in an appeal from conviction?

Legislation cited

Code of Criminal Procedure, 1973s. 386, s. 401
Indian Penal Code, 1860s. 363-A, s. 376, s. 376(2)(i)
Protection of Children from Sexual Offences Act, 2012s. 3(a), s. 4, s. 5(m), s. 6
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989s. 3(1)(xii), s. 3(2)(v)

Headnote

Issue for Consideration Issue arose whether, the High Court could enhance the sentence under its revisional powers in a convict’s appeal against conviction. Headnotes† Code of Criminal Procedure, 1973 – s.386 – Powers of the Appellate Court to enhance sentence in appeal appellant for the offences punishable u/ss.3(a) and 4 of the POCSO Act and s.376 IPC for committing penetrative sexual assault on the minor victim, and sentenced to rigorous imprisonment for seven years and fine by the Special Court – Appeal against conviction by the appellant – High

Subjects

Enhancement of sentenceRevisional powersAppeal against convictionPowers of the Appellate CourtPenetrative sexual assault on minor victimSpecial CourtShow cause noticeQuantum of sentenceHigh Court Legal ServicesOpportunity of hearingRetrialAppellate jurisdictionRevisional jurisdictionIncarceration

Judgment

[2025] 4 S.C.R. 2500 : 2025 INSC 716

Sachin
v.
State of Maharashtra
(Criminal Appeal No(s). 2073-2075 of 2025)
21 April 2025
[B.V. Nagarathna* and Satish Chandra Sharma, JJ.]

Issue for Consideration
Issue arose whether, the High Court could enhance the sentence
under its revisional powers in a convict’s appeal against
conviction.

Headnotes†
Code of Criminal Procedure, 1973 – s.386 – Powers of the
Appellate Court to enhance sentence in appeal against
conviction – Conviction of the appellant for the offences
punishable u/ss.3(a) and 4 of the POCSO Act and s.376 IPC
for committing penetrative sexual assault on the minor victim,
and sentenced to rigorous imprisonment for seven years and
fine by the Special Court – Appeal against conviction by the
appellant – High Court affirmed the finding of the Special Court
as regards the commission of offence, however observed that
the Special Court while convicting the appellant, overlooked
the provisions of ss.5(m) and 6 of the POCSO Act and s.376(2)(i)
IPC – High Court issued show cause notice to the appellant on
enhancement of sentence and remitted the case to the Special
Court for reconsidering the quantum of the sentence – Special
Court convicted the appellant u/ss.5(m) and 6 of the POCSO
Act to suffer life imprisonment and fine and also convicted for
offence punishable u/ss.376(2)(i) IPC for which no separate
sentence is provided – In appeal, the Division Bench of the
High Court expressed its inability to proceed in the matter and
instead suggested the High Court Legal Services take steps
to restore justice to the appellant – Correctness:
Held: Appellate court, in an appeal filed by the accused cannot,
while maintaining the conviction, enhance the sentence – While

* Author
[2025] 4 S.C.R. 2501

Sachin v. State of Maharashtra

exercising its appellate jurisdiction at the instance of the convict,
the High Court cannot act as a revisional court, particularly, when
no appeal or revision has been filed either by the State, victim or
complainant for seeking enhancement of sentence against accused –
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 – Power to
enhance the sentence can be exercised by the appellate court only
in an appeal filed by the State, victim or complainant provided the
accused has had an opportunity of showing cause against such
enhancement – 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
the order of sentence under appeal – Thus, even in an appeal for
enhancement of sentence, unless the conditions prescribed in the
form of provisos are complied with by the appellate court, there
cannot be an enhancement of sentence – No appellant by filing
an appeal can be worse-off than what he was – In an appeal filed
by an accused against a judgment of conviction and sentence, he
cannot be remitted to the trial court to impose a higher sentence on
him – Single Judge of the High Court was not right in remanding
the matter to the Special Court for enhancing the sentence to be
imposed on the appellant-accused, that too, in an appeal filed by
accused seeking setting aside of a judgment of conviction and
sentence imposed on him – Consequently, the Special Court not
right in enhancing the sentence to life imprisonment by following the
said direction – Appellant while initially subjected to imprisonment
of seven years, has completed actual sentence of eleven years
and eight months – Orders of the High Court and consequently
of the Special Court erroneous and liable to be set aside – To do
the complete justice in exercise of powers u/Art.142, the original
sentence of seven years of rigorous imprisonment imposed on the
appellant restored – Instead of rehearing his appeal on the original
sentence, the matter is concluded and the appellant is released
from jail forthwith – Protection of Children from Sexual Offences
Act, 2012 – ss.3(a), 4, 5(m), 6 – Penal Code, 1860 – ss.363-A,
376. [Paras 23, 26, 27, 29.1, 31-33, 34.4-37]

Jurisdiction – Appellate jurisdiction and revisional jurisdiction –
Difference between:
2502 [2025] 4 S.C.R.

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Held: Ordinarily, appellate jurisdiction involves a rehearing, as it
were, on law as well as on facts and is invoked by an aggrieved
person – Ordinarily, revisional jurisdiction is analogous to a power
of superintendence and may sometimes be exercised even without
it being invoked by a party – Extent of revisional jurisdiction is
defined by the statute conferring such jurisdiction – 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. [Paras 28, 28.4]

Case Law Cited
Kumar Ghimrey v. State of Sikkim [2019] 6 SCR 203 : (2019) 6
SCC 166; Nadir Khan v. State (Delhi Admn.) [1975] Supp. 1 SCR
489 : (1975) 2 SCC 406; Eknath Shankarrao Mukkawar v. State of
Maharashtra [1977] 3 SCR 513 : (1977) 3 SCC 25; Sahab Singh v.
State of Haryana [1990] 1 SCR 512 : AIR 1990 SC 1188; Govind
Ramji Jadhav v. State of Maharashtra [1990] 1 SCR 855 : (1990)
4 SCC 718; State of Himachal Pradesh v. Nirmala Devi [2017]
2 SCR 112 : (2017) 7 SCC 262; Surjit Singh v. State of Punjab,
1984 Supp. SCC 518; Govind Ramji Jadhav and Surendra Singh
Routela v. State of Bihar [2001] Supp. 5 SCR 340 : (2002) 1 SCC
266; AR Antulay v. RS Nayak [1988] Supp. 1 SCR 1 : AIR 1988
SC 1531; James Joseph v. State of Kerala [2010] 10 SCR 844 :
(2010) 9 SCC 642, para 19(i); Bolin Chetia v. Jagdish Bhuyan
[2005] 2 SCR 692 : AIR 2005 SC 1872 : (2005) 6 SCC 81; State
of Kerala v. Charia Abdulla & Co. [1965] SCR 601 : AIR 1965 SC
1585; Sri Raja Lakshmi Dyeing Works v. Rangaswamy (1980) 4
SCC 259 – referred to.
Chautala Workers Co-op Transport Society Ltd. v. State of Punjab,
AIR 1962 Punj 94 – referred to.
Attorney General v. Herman James Sillem (1864) 10 HLC
704 – referred to.

Books and Periodicals Cited
Black’s Law Dictionary, Ninth Edition; P Ramanatha Aiyar, Advanced
Law Lexicon, 6th Edition, Volume–1; P Ramanatha Aiyar’s
Advanced Law Lexicon, 6th Edition, Volume 4 – referred to.
[2025] 4 S.C.R. 2503

Sachin v. State of Maharashtra

List of Acts
Code of Criminal Procedure, 1973; Protection of Children from
Sexual Offences Act, 2012; Penal Code, 1860; Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

List of Keywords
Enhancement of sentence; Revisional powers; Appeal against
conviction; Powers of the Appellate Court; Penetrative sexual
assault on minor victim; Special Court; Show cause notice; Quantum
of sentence; High Court Legal Services; Opportunity of hearing;
Retrial; Appellate jurisdiction; Revisional jurisdiction; Incarceration.

Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No(s).
2073-2075 of 2025
From the Judgment and Order dated 26.02.2016 in CRLA No.
30 of 2015, 08.03.2016 in CRLA No. 30 of 2015 and 28.04.2016
in CN No. 05 of 2013 passed by the Special Judge, Warora, in
Special (POCSO) Case No. 05 of 2013

Appearances for Parties
Advs. for the Appellant:
Ms. Sangeeta Kumar, Mrs. Vithika Garg, Ms. Vidushi Garg, Hemant
Kumar Tripathi.
Advs. for the Respondent:
Shrirang B. Varma, Siddharth Dharmadhikari, Aaditya Aniruddha
Pande.

Judgment / Order of the Supreme Court

Judgment

Nagarathna, J.

Leave granted.
2. This is an unfortunate case where the appellant herein, instead of
suffering a sentence of rigorous imprisonment for seven years has
been incarcerated for eleven years simply owing to the fact that
2504 [2025] 4 S.C.R.

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Criminal Appeal No.30/2015 preferred by him before the High Court
of Judicature at Bombay, Nagpur Bench, Nagpur, the matter was
remitted to the Special Court for enhancement of sentence without
even adhering to the salient principles of natural justice.
3. The appellant herein faced trial pursuant to FIR No. 154/2013
registered with P.S. Bhadrawati District, State of Maharashtra under
Sections 3(a) and 4 of the Protection of Children from Sexual Offences
Act, 2012 (for short, “POCSO Act”) and Section 363-A, 376 of the
Indian Penal Code, 1860 (for short, “IPC”) and Sections 3(1)(xii) and
3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention
of Atrocities) Act. Charges were framed against the appellant under
the aforesaid sections.
4. The case of the prosecution is that the appellant was a neighbour of
the family of the minor victim, aged four years. On 15.09.2013, while
the father of the minor victim was away for work and the mother had
gone out for cooking, the appellant induced the minor victim to his
house, undressed her and committed the offence of rape on her. Two
independent witnesses residing in the same neighbourhood informed
the minor victim’s mother about the incident. Later, the minor victim
narrated the incident to the complainant who took his daughter to a
doctor. After gathering courage, the complainant registered Crime
No.154/2013 on 23.09.2023 under the aforesaid provisions.
5. By judgment dated 24.11.2014, the Special Judge, Warora, concluded
that the prosecution had proved that the accused had committed
penetrative sexual assault on the minor victim. Thereby, the Special
Court convicted the appellant herein for the offences punishable
under Sections 3(a) and 4 of the POCSO Act and Section 376 of
IPC. Consequently, the appellant was sentenced to suffer rigorous
imprisonment for seven years and to pay fine of Rs.2,000/- and in
default to undergo rigorous imprisonment for two months. As offence
under Section 376 IPC was merged in the aforesaid offences, no
separate punishment was awarded by the Special Court.
6. Aggrieved by his conviction and sentence, the accused-appellant
herein preferred Criminal Appeal No.30/2015 before the High Court.
It is pertinent to note that the State had not assailed by way of
an appeal the sentence of rigorous imprisonment for seven years
imposed by the Special Court on the appellant herein. Neither was
any appeal filed by the complainant or on behalf of the victim.
[2025] 4 S.C.R. 2505

Sachin v. State of Maharashtra

7. On the other hand, the appellant – accused assailed the judgment
of conviction and sentence before the High Court. By impugned
judgment dated 26.02.2016, the High Court affirmed the finding of
the Special Court to the effect that the victim was present in the
house of the accused at the time of incident and there was no one
else in the house except the accused and the victim. Pertinently,
the High Court was of the view that this exceptional fact had not
been sufficiently explained by the appellant. Relying on the evidence
of Dr. Dipti Vinay Shrirame (P.W.6) and the medical examination
report of the victim issued by the General Hospital, Chandrapur,
the High Court concluded that the fact of penetrative sexual assault
was proved beyond reasonable doubt. Also, as per Section 29 of
POCSO Act, the appellant was found to have failed to discharge
the burden of explaining the presence of the victim in his house and
the medical evidence which proved the commission of penetrative
sexual assault.
8. Section 3 of POCSO Act defines when a person is said to commit
penetrative sexual assault and Section 4 prescribes the punishment
for the same. Prior to its amendment, Section 4 provided for
imprisonment of either description for a term which shall not be
less than seven years but which may extend to imprisonment for
life and shall also be liable to fine. The Section has been amended
with effect from 16.08.2016.
9. A comparison of aforesaid sections with Sections 5 and 6 of POCSO
Act, is necessary. Section 5 provides when an accused is said to
commit ‘aggravated penetrative sexual assault’. In particular, Section
5(m) provides that whoever commits penetrative sexual assault on
a child below twelve years is said to commit aggravated penetrative
sexual assault. At the time of commission of offence in the instant
case, Section 6 enumerated punishment of rigorous imprisonment for
a term not less than ten years but which may extend to imprisonment
for life and shall also be liable to fine. The aforesaid Sections read
as under:
“3. Penetrative sexual assault.—A person is said to
commit “penetrative sexual assault” if—
(a) he penetrates his penis, to any extent, into the vagina,
mouth, urethra or anus of a child or makes the child
to do so with him or any other person; or
2506 [2025] 4 S.C.R.

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(b) he inserts, to any extent, any object or a part of the
body, not being the penis, into the vagina, the urethra
or anus of the child or makes the child to do so with
him or any other person; or
(c) he manipulates any part of the body of the child so
as to cause penetration into the vagina, urethra, anus
or any part of body of the child or makes the child to
do so with him or any other person; or
(d) he applies his mouth to the penis, vagina, anus,
urethra of the child or makes the child to do so to
such person or any other person.
4. Punishment for penetrative sexual assault.—(1)
Whoever commits penetrative sexual assault shall be
punished with imprisonment of either description for a
term which shall not be less than seven years but which
may extend to imprisonment for life, and shall also be
liable to fine.
xxx
5. Aggravated penetrative sexual assault.—
xxx
(m) whoever commits penetrative sexual assault on a child
below twelve years; or
xxx
is said to commit aggravated penetrative sexual assault.
6. Punishment for aggravated penetrative sexual
assault.—(1) Whoever commits aggravated penetrative
sexual assault shall be punished with rigorous imprisonment
for a term which shall not be less than twenty years, but
which may extend to imprisonment for life, which shall
mean imprisonment for the remainder of natural life of
that person and shall also be liable to fine, or with death.
(2) The fine imposed under sub-section (1) shall be just
and reasonable and paid to the victim to meet the medical
expenses and rehabilitation of such victim.”
[2025] 4 S.C.R. 2507

Sachin v. State of Maharashtra

10. It is an undisputed fact that the minor victim was four years of age
at the time of commission of the offences. In this context, the High
Court observed that the Special Court in convicting the appellant under
Sections 3(a) and 4 of POCSO Act had overlooked the provisions
of Sections 5(m) and 6 of POCSO Act as well as Section 376(2)(i)
of the IPC. Finally, the High Court held that the appellant herein is
liable for punishment under Section 6 of the POCSO Act and under
Section 376(2)(i) of IPC. While maintaining the findings recorded by
the Special Court that the appellant indeed committed penetrative
sexual assault on the victim, the High Court issued show cause
notice to the appellant as to why he should not be sentenced as
per Section 6 of the POCSO Act and for the offence under Section
376(2)(i) of IPC. Considering the minimum statutory punishment, it
is apparent that sentencing under Section 6 of POCSO Act would
inevitably result in enhancement of sentence by at least three years.
11. The contention raised by learned counsel for the appellant herein
before the High Court was that such a course was impermissible in
law as it would amount to altering/modifying the charge was to be
considered on the next date. The appeal was listed before the High
Court on 02.03.2016 for further hearing on the point of sentencing
and the appellant was also directed to be produced before the Court.
On 02.03.2016, the appellant was produced before the High Court
and was made aware about the issuance of notice regarding hearing
on enhancement of sentence. What appears is that despite the
judgment of the High Court dated 26.02.2016, the appellant was made
aware of the issuance of show cause notice only for enhancement
of sentence on 02.03.2016. Subsequently, on 08.03.2016, the High
Court passed the order and reiterated that appellant is liable to be
punished under Section 6 of the POCSO Act and Section 376(2)(i)
of IPC, both provisions having been overlooked by the Special Court
and finally remitted the case to the Special Court for reconsidering
the quantum of the sentence to be imposed on the appellant by
way of enhancement for the offences said to have committed by
the appellant.
12. Consequently, the Special Court vide order dated 28.04.2016
sentenced the appellant to life imprisonment and to pay fine of
Rs. 5000/-, in default to undergo further rigorous imprisonment for
six months.
2508 [2025] 4 S.C.R.

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13. Aggrieved by the enhancement of sentence in pursuance of his own
appeal, the appellant herein preferred Criminal Appeal No.311/2021
before the Division Bench of the High Court by assailing order dated
28.04.2016 which obviously expressed its inability to proceed in the
matter and instead suggested that the High Court Legal Services
Sub-Committee, Nagpur take steps to restore justice to the appellant
herein.
14. It is in the above circumstances, that we have heard learned counsel
Ms. Sangeeta Kumar appearing on behalf of the Supreme Court
Legal Services Committee for the appellant – accused and Shri
Rang Verma, learned counsel for the respondent-State at length.
15. Ms. Kumar, learned counsel appearing for the appellant, contended
that in the absence of any appeal preferred by the State Government
or the complainant, the High Court grossly erred in enhancing the
sentence. The decision of the High Court has left the appellant
worse-off in his own appeal, it was argued.
16. Per contra, learned counsel appearing for the respondent-State
relied on the judgment of this Court in Kumar Ghimrey vs. State
of Sikkim, (2019) 6 SCC 166 (“Kumar Ghimrey”) to buttress his
submission that the High Court, even in the absence of a State appeal,
is competent under Section 401 Code of Criminal Procedure, 1973
(for short, “CrPC”) to exercise its powers under Section 396(c) and
enhance the sentence once appellant-accused’s appeal was filed.
17. On that note, learned counsel appearing for the appellant vociferously
highlighted the grave injustice of prolonged incarceration has caused
to the appellant due to High Court not granting an effective opportunity
of hearing. It was contended that the Order dated 08.03.2016 does
not reflect that the counsel for the appellant-accused or the accused
himself was actually heard on the question of modifying the charge
from a minor offence to a major offence and thereby altering the
finding and enhancing the sentence.
18. We find merit in the submission of learned counsel for the appellant that
the record does not reflect that the counsel for the appellant-accused
or the accused himself was heard on the question of modifying the
charge from a minor offence to a major offence and thereby altering the
finding and enhancing the sentence. The further and more important
submission is that, in an appeal filed by the accused/convict the
sentence cannot be enhanced by the appellate court.
[2025] 4 S.C.R. 2509

Sachin v. State of Maharashtra

19. Section 386 CrPC discusses the powers of the appellate court. For
ease of reference, Section 386 reads as under:
“386. Powers of the Appellate Court.—After perusing
such record and hearing the appellant or his pleader, if
he appears, and the Public Prosecutor if he appears, and
in case of an appeal under section 377 or section 378,
the accused, if he appears, the Appellate Court may, if it
considers that there is no sufficient ground for interfering,
dismiss the appeal, or may—
(a) in an appeal from an order or acquittal, reverse such
order and direct that further inquiry be made, or that the
accused be re-tried or committed for trial, as the case
may be, or find him guilty and pass sentence on him
according to law;
(b) in an appeal from a conviction—
(i) reverse the finding and sentence and acquit or
discharge the accused, or order him to be re-tried
by a Court of competent jurisdiction subordinate to
such Appellate Court or committed for trial, or
(ii) alter the finding, maintaining the sentence, or
(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—
(c) in an appeal for enhancement of sentence—
(i) reverse the finding and sentence and acquit or
discharge the accused or order him to be re-tried by
a Court competent to try the offence, or
(ii) alter the finding maintaining the sentence, or
(iii) with or without altering the finding, alter the
nature or the extent, or, the nature and extent, of
the sentence, so as to enhance or reduce the same;
(d) in an appeal from any other order, alter or reverse
such order;
(e) make any amendment or any consequential or incidental
order that may be just or proper:
2510 [2025] 4 S.C.R.

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Provided that the sentence shall not be enhanced unless
the accused has had an opportunity of showing cause
against such enhancement:
Provided further 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 the order or sentence
under appeal.”
The said provision delineates four categories of appeals, (i) an
appeal from an order of acquittal; (ii) an appeal from conviction; (iii)
an appeal for enhancement of sentence; and (iv) an appeal from
any other order.
20. Section 377 CrPC which provides for appeal by the State Government
against inadequacy of sentence was a novel provision brought in
by the CrPC. The 41st Law Commission had noted in its report that,
pre-1973, in the absence of a statutory provision which permitted
the State to prefer an appeal against inadequate sentence, the State
was compelled to invoke the revisional powers of the High Court for
correction of any error in sentencing. Finding this to be unsatisfactory,
the Law Commission recommended that the State Government
should be able to appeal against an inadequate sentence before
an ordinary Court of Appeal as well. To effectuate this intent, the
Parliament inserted Section 377.
20.1 In Nadir Khan vs. State (Delhi Admn.), (1975) 2 SCC 406
(“Nadir Khan”), the petitioner was found in illegal possession
of ganja weighing 7 kgs, and was convicted under Section
61(a) of the Punjab Excise Act, 1914 as extended to Delhi and
sentenced to two months’ rigorous imprisonment. As no right to
appeal was available, an unsuccessful revision application was
preferred before the Sessions Court. Aggrieved, the petitioner
had then moved the High Court under Section 482 CrPC read
with Article 227 of the Constitution against the conviction. In
turn, the High Court left the petitioner worse off as it thought
that the sentence awarded was inadequate. By suo moto
invoking its revisional jurisdiction, the High Court enhanced
the sentence to six months. In a special leave petition before
this Court, the question raised was, whether, the High Court,
in a revision under Section 401 CrPC, has the jurisdiction to
[2025] 4 S.C.R. 2511

Sachin v. State of Maharashtra

enhance the sentence in the absence of an appeal by the
State against the inadequacy of sentence under Section 377.
20.1.1 Noting that the High Court did leave the petitioner
worse off, this Court speaking through Goswami, J.,
characterised the question to be an unmerited doubt
on the undoubted jurisdiction of the High Court in
acting suo motu in criminal revision in appropriate
cases. It was observed that the High Court is not
required to act in revision merely through a conduit
application at the instance of an aggrieved party. It
was held as follows:
“The High Court, as an effective instrument
for administration of criminal justice, keeps
a constant vigil and wherever it finds that
justice has suffered, it takes upon itself as its
bounden duty to suo motu act where there is
flagrant abuse of the law. The character of
the offence and the nature of disposal of
a particular case by the subordinate court
prompt remedial action on the part of the
High Court for the ultimate social good
of the community, even though the State
may be slow or silent in preferring an
appeal provided for under the new Code.
… This position was true and extant in the
old Code of 1898 and this salutary power
has not been denied by Parliament under the
new Code by rearrangement of the sections.
It is true the new Code has expressly given
a right to the State under Section 377 CrPC
to appeal against inadequacy of sentence
which was not there under the old Code.
That however does not exclude revisional
jurisdiction of the High Court to act suo motu
for enhancement of sentence in appropriate
cases. What is an appropriate case has to
be left to the discretion of the High Court.…
Section 401 expressly preserves the
power of the High Court, by itself, to call
2512 [2025] 4 S.C.R.

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for the records without the intervention
of another agency and has kept alive the
ancient exercise of power when something
extraordinary comes to the knowledge
of the High Court. The provisions under
Section 401 read with Section 386(c)(iii)
CrPC are clearly supplemental to those
under Section 377 whereby appeals are
provided for against inadequacy of sentence
at the instance of the State Government or
Central Government, as the case may be.
There is therefore absolutely no merit in
the contention of the learned counsel that
the High Court acted without jurisdiction in
exercising the power of revision suo motu,
for enhancement of the sentence in this
case. The application stands rejected.”
(underlining by us)

20.2 In Eknath Shankarrao Mukkawar vs. State of Maharashtra,
(1977) 3 SCC 25 (“Eknath Shankarrao Mukkawar”), an
appeal was indeed preferred by the State Government under
Section 377(1) CrPC against the inadequacy of the sentence
of the appellant convicted under Section 16(1)(a)(i) read with
Sections 2(i)(1) and 7(i) of the Prevention of Food Adulteration
Act, 1954 and sentenced to imprisonment till the rising of
the Court and to pay a fine of Rs.500 and in default rigorous
imprisonment for two months. The High Court allowed the
appeal of the State with regard to the inadequacy of the
sentence and while affirming the conviction of the appellant
under aforesaid provisions enhanced the sentence to six
months’ simple imprisonment and a fine of Rs.1000 and in
default simple imprisonment for two months. In appeal before
this Court, the principal submission of the appellant was that
the appeal under Section 377(1) was not maintainable due to
the bar operating then under Section 377(2). This argument
is not relevant for our consideration in the present case.
Additionally and alternatively, it was argued that the appeal
not being maintainable, the High Court could not have, in any
event, invoked its revisional powers under Section 401 CrPC
[2025] 4 S.C.R. 2513

Sachin v. State of Maharashtra

to enhance the sentence suo moto as the power of the High
Court to enhance sentence which was available under Sections
435/439 CrPC of the old CrPC is absolutely replaced by the
provision of appeal under Section 377 CrPC of the new CrPC.
Rejecting the submission, a three-judge Bench of this Court
held that the High Court has revisional powers to, suo motu,
enhance the sentence. It was held that:
“6. We should at once remove the misgiving that
the new Code of Criminal Procedure, 1973, has
abolished the High Court’s power of enhancement
of sentence by exercising revisional jurisdiction, suo
motu. The provision for appeal against inadequacy
of sentence by the State Government or the Central
Government does not lead to such a conclusion.
High Court’s power of enhancement of sentence, in
an appropriate case, by exercising suo motu power
of revision is still extant under Section 397 read with
Section 401 of the Criminal Procedure Code, 1973,
inasmuch as the High Court can “by itself” call for
the record of proceedings of any inferior criminal
court under its jurisdiction. The provision of Section
401(4) is a bar to a party, who does not appeal, when
appeal lies, but applies in revision. Such a legal bar
under Section 401(4) does not stand in the way of
the High Court’s exercise of power of revision, suo
motu, which continues as before in the new Code.”
(underlining by us)

The aforesaid judgments of this Court settled the question
that a High Court has the jurisdiction to suo moto enhance the
sentence under the CrPC by invoking its revisional powers.
The pertinent question then is, whether, the High Court could
enhance the sentence under its revisional powers in a convict’s
appeal against conviction.
21. 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 386 CrPC. 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
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of acquittal or for enhancement of sentence could be filed 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 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 has also 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.
22. Some judgments of this Court on the interpretation of Section 386
CrPC may be referred to at this stage.
22.1 In Sahab Singh vs. State of Haryana, AIR 1990 SC 1188
(“Sahab Singh”) seven appellants were convicted by the
learned Additional Sessions Judge, Sonepat on three counts
and sentenced as follows:
(a) rigorous imprisonment for one year under Section 148,
IPC;
(b) rigorous imprisonment for six months under Section
323/149, IPC; and
(c) imprisonment for life and a fine of Rs. 200 under Section
302/149, IPC.
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 Section 302/149 IPC from Rs. 200/- to Rs. 5,000/- 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
[2025] 4 S.C.R. 2515

Sachin v. State of Maharashtra

question of enhancement only. While discussing Sections 374
and 401 CrPC this Court observed that on a co-joint reading
of Section 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 CrPC since the High Court
itself is empowered to call for the record of the proceeding
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 wither 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. Discussing the facts of the said case, it was
noted 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 Section 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 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.
22.2 In Govind Ramji Jadhav vs. State of Maharashtra, (1990) 4
SCC 718 (“Govind Ramji Jadhav”), the question was whether
the High Court had jurisdiction to enhance the sentence without
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issuing notice and affording to the appellant an opportunity of
showing cause against such enhancement of the sentence
in the absence of an appeal by the State for enhancement of
sentence on the ground of inadequacy. The appellant therein
had preferred criminal appeal against the conviction and
sentence before the Bombay High Court, Aurangabad Bench.
The High Court neither issued notice to the appellant therein
nor afforded him any opportunity of showing cause against
the said enhancement while enhancing the sentence. There
was no appeal for the said enhancement of sentence under
Section 377 CrPC on the ground of its inadequacy. It was
observed that the High Court enjoys the power of enhancing
the sentence either in exercise of its revisional jurisdiction under
Section 397 read with Section 401 or its appellate jurisdiction
under Section 377 read with Section 386(c) CrPC subject to
proviso (1) and (2) to Section 386. That while exercising its
revisional jurisdiction under Section 397 read with Section
401 CrPC for enhancement of sentence, opportunity must be
provided to the accused.
Referring to certain judgments of this Court, it was observed
that Section 386 CrPC deals with the powers of the appellate
court in disposing of an appeal preferred under Section 374
and also in case of an appeal under Sections 377 or 378
CrPC. Under clause (c)(iii) of Section 386 CrPC, the appellate
court may in an appeal for enhancement of sentence with or
without altering the finding, alter the nature or the extent, or,
the nature and extent, of the sentence so as to enhance or
reduce the same. That in both the above situations, for the
power of enhancement of the sentence, the accused must
be given a reasonable opportunity to showing cause as
contemplated under the first proviso to Section 386 as well
under sub-section (3) of Section 377 CrPC. Rules of natural
justice would mandate issuance of notice to the appellant and
affording an opportunity to be heard on the proposed action for
enhancement of sentence. Applying the aforesaid principle to
the facts of the said case, it was observed that enhancement
of sentence from three years to seven years for the conviction
under Section 201 IPC was impermissible. Consequently,
this Court set aside the High Court’s order enhancing the
[2025] 4 S.C.R. 2517

Sachin v. State of Maharashtra

sentence and restored the order of the trial court imposing
the sentence of three years rigorous imprisonment and the
fine of Rs. 2500/- with the default clause.
22.3 In State of Himachal Pradesh vs. Nirmala Devi, (2017) 7
SCC 262, the issue was whether the High Court in its appellate
jurisdiction under Section 386 CrPC could have set-aside the
sentence of imprisonment as imposed by the trial court under
Sections 328, 392 and 307 IPC by enhancing the amount of
fine to Rs.30000/- from the fine of Rs.2000/- as ordered by
the trial court. There were two concurring opinions expressed
through Dr. A.K. Sikri and Ashok Bhushan, JJ.
22.3.1 Ashok Bhushan, J. while observing that in the said
case the High Court had not altered the finding of
guilt and only altered the sentence, considered the
meaning and content of the statutory scheme as
delineated by the words “altered the nature or the
extent of the sentence, but not so as to enhance
the same”. The question therein was whether, while
altering the sentence, the High Court is empowered
to alter the sentence to an extent which could not
have been awarded by the trial court after recording
the finding of guilt. It was found that the High Court
by its judgment had punished the accused only
with fine after affirming the finding of guilt recorded,
whereas the trial court after holding the accused guilty
had sentenced him with rigorous imprisonment of
two years with a fine of Rs.2000/- and in default of
payment, further simple imprisonment for a period of
three months for each of the offences under Sections
307, 328 and 392 IPC. The question was, whether,
the High Court could have imposed a sentence only
of a fine or it was incumbent on High Court to impose
imprisonment as well as fine. After referring to a
number of judgments, Ashok Bhushan, J. observed
that the punishment provided in the aforesaid
sections which contains the imprisonment and fine
has to be read to mean that upon the offence being
proved under Sections 397, 329 and 392 IPC, the
punishment of imprisonment and fine are imperative.
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22.3.2 The trial court had awarded sentence of two years’
imprisonment with fine of Rs.2000/- for each of the
aforesaid offences. Thus, it was held that, for the said
offences, the punishment of only fine was incorrect as
imprisonment is an imperative part of the punishment.
It was observed that while exercising jurisdiction under
Section 386(b)(iii) CrPC, the appellate court cannot
alter the sentence of imprisonment and fine into a
sentence only of fine which shall be contrary to the
statutory scheme. This would be unfair and unjust.
Therefore, setting-aside the sentence of punishment
of imposing only fine by the High Court, the appeal
filed by the State was allowed. The judgment of the
High Court was set-aside and the judgment and
sentence awarded by the trial court was restored.
The respondent therein was directed to be taken
into custody to serve the sentence as imposed by
the trial court.
22.4 In Kumar Ghimrey, 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 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/-.
22.4.1 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
[2025] 4 S.C.R. 2519

Sachin v. State of Maharashtra

appellant therein filed the appeal before this Court.
While analyzing 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 has generally 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 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.
22.4.2 In this regard, reference was made to Surjit Singh
vs. State of Punjab, 1984 Supp SCC 518; Govind
Ramji Jadhav and Surendra Singh Routela 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.
22.4.3 We find that the above judgment 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
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imposed by the Special Judge while setting 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.
23. 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 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 two-fold: firstly, it could be against the conviction
itself in which 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. 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.
[2025] 4 S.C.R. 2521

Sachin v. State of Maharashtra

24. 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 !
25. An appeal by an accused/convict is not only a valuable statutory
right but also a constitutional right in criminal cases. In AR Antulay
vs. RS Nayak, AIR 1988 SC 1531, (“Antulay”), the majority of a
seven-Judge Bench (5:2) observed that the creation of a right to
an appeal is an act which requires legislative authority, neither an
inferior court nor the superior court nor both combined can create
such a right, it being one of limitation and extension of jurisdiction. In
the said case, it was observed that the withdrawal of the trial under
progress before a trial court and its transfer to a Special Court of
the High Court resulted in the appellant therein losing his right of
appeal. That a right of appeal is an invaluable right, particularly, for
an accused who cannot be condemned eternally by a trial judge,
without having a right to seek a re-look of the trial court’s judgment
by a superior or appellate court.
26. 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 re-trial in
accordance with law or reduce the sentence while maintaining the
conviction or, in the alternative, to dismiss the appeal.
27. In our considered view, the appellate court, in an appeal filed by
the accused cannot, while maintaining the conviction, enhance the
sentence. While exercising its appellate jurisdiction at the instance
of the convict, the High Court cannot act as a revisional court,
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particularly, when no appeal or revision has been filed either by the
State, victim or complainant for seeking enhancement of sentence
against accused.
27.1 While we have analysed Section 386 CrPC which deals with
the right of a party including an accused to file an appeal, we
may peruse Section 401 CrPC which deals with the revisional
powers of the High Court which is extracted as under:
“401. High Court’s powers of revision.—(1) In
the case of any proceeding the record of which has
been called for by itself or which otherwise comes to
its knowledge, the High Court may, in its discretion,
exercise any of the powers conferred on a Court of
Appeal by sections 386, 389, 390 and 391 or on
a Court of Session by section 307, and, when the
Judges composing the Court of Revision are equally
divided in opinion, the case shall be disposed of in
the manner provided by section 392.
(2) No order under this section shall be made to
the prejudice of the accused or other person unless
he has had an opportunity of being heard either
personally or by pleader in his own defence.
(3) Nothing in this section shall be deemed to
authorise a High Court to convert a finding of acquittal
into one conviction.
(4) Where under this Code an appeal lies and no
appeal is brought, no proceeding by way of revision
shall be entertained at the instance of the party who
could have appealed.
(5) Where under this Code an appeal lies but
an application for revision has been made to the
High Court by any person and the High Court is
satisfied that such application was made under the
erroneous belief that no appeal lies thereto and
that it is necessary in the interests of Justice so
to do, the High Court may treat the application for
revision as a petition of appeal and deal with the
same accordingly.”
[2025] 4 S.C.R. 2523

Sachin v. State of Maharashtra

27.2 Sub-section (4) of Section 401 CrPC states that where under
the CrPC an appeal could have been filed and has not been
filed then no proceeding by way of revision could be entertained
at the instance of the party who could have appealed. This
means that if a State, complainant or the victim who has the
right to file an appeal does not opt to do so then the High Court
cannot entertain a revision at their behest. Also, if an appeal
lies under the CrPC but an application for revision has been
made to the High Court by any person under an erroneous
belief then the High Court can treat the application for revision
as petition of appeal and deal with the same accordingly. What
is the pertinent is that under Section 401 CrPC, the High
Court is not authorised to convert the findings of acquittal into
one of conviction by exercise of revisional jurisdiction. This
salutary principle can be extended to also mean that the High
Court cannot extend the sentence imposed by a trial court
on conviction to enhance sentence in an appeal filed by the
accused/convict. Thus, in sum and substance, it is observed
that in an appeal filed by the accused seeking setting aside
of the conviction of sentence, the High Court cannot exercise
its revisional powers and while affirming the conviction, direct
for enhancement of sentence where appeal could have been
filed by the State, complainant or the victim and has not
been filed. Therefore, where an appeal has been filed by the
accused challenging the conviction and the sentence, the
revisional jurisdiction cannot be exercised by the High Court
so as to remand the matter to the trial court for the purpose
of enhancement of the sentence.
28. The difference between an appellate jurisdiction and revisional
jurisdiction are well known. The same could be briefly re-visited by
bearing in mind the factual aspects of this case.
28.1 According to Black’s Law Dictionary, Ninth Edition, an appeal
is a proceeding undertaken to have a decision reconsidered
by a higher authority; especially, the submission of a lower
court’s or agency’s decision to a higher court for review
and possible reversal. According to P Ramanatha Aiyar,
Advanced Law Lexicon, 6th Edition, Volume–1, an appeal is
a proceeding where the higher forum reconsiders the decision
of a lower forum, on questions of fact and questions of law,
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with jurisdiction to confirm, reverse, modify the decision or
remand the matter to the lower forum for fresh decision in
terms of its directions. [James Joseph vs. State of Kerala,
(2010) 9 SCC 642, para 19(i)].
28.2 In its natural and ordinary meaning, the word ‘appeal’ means
a remedy by which a cause determined by an inferior forum
is subjected before a superior forum for the purpose of testing
the correctness of the decision given by the inferior forum.
[Bolin Chetia vs. Jagdish Bhuyan, AIR 2005 SC 1872 :
(2005) 6 SCC 81]. An appeal in legal parlance is held to mean
the renewal of a cause from an inferior or subordinate to a
superior tribunal or forum in order to test and scrutinise the
correctness of the impugned decision. It amounts in essence
and pith to a complaint to a higher forum that the decision of
the subordinate tribunal is erroneous and therefore liable to
be rectified or set right. Chautala Workers Co-op Transport
Society Ltd. vs. State of Punjab, AIR 1962 Punj 94 : 100.
28.3 There is an essential distinction between an appeal and a
revision. An appeal is a continuation of the proceedings; in
effect the entire proceedings are before the appellate authority
and it has power to review the evidence subject to the statutory
limitation prescribed. But in the case of a revision, whatever
powers the revisional authority may or may not have, it has not
the power to review the evidence unless the statute expressly
confers on it that power. State of Kerala vs. Charia Abdulla
& Co, AIR 1965 SC 1585.
28.4 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, 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.
[2025] 4 S.C.R. 2525

Sachin v. State of Maharashtra

28.5 According to Black’s Law Dictionary, Ninth Edition,
revision is a re-examination or careful review for correction or
improvement. A revision can occur only if it will not materially
prejudice the accused. According to P Ramanatha Aiyar’s
Advanced Law Lexicon, 6th Edition, Volume 4, revision
is an act of examining again in order to remove any defect
or grant relief against the irregular or improper exercise or
non-exercise of jurisdiction by a lower Court. The expression
‘revision’ is meant to convey the idea of a much narrower
jurisdiction than that conveyed by the expression ‘appeal’.
[Sri Raja Lakshmi Dyeing Works vs. Rangaswamy, (1980)
4 SCC 259 : 262, para 3]
28.6 In law, ‘revision’ stands on a different footing from an ‘appeal’.
In a revision, the revising authority is not bound to examine
the facts for itself but is entitled to give its decision on points
of law alone, whereas in an appeal, the whole case is before
the appellate authority, which must enter into questions both
of fact and law. Also in a revision, the person seeking revision
has mere restricted rights than one who prefers an appeal.
Whereas an appeal confers statutory vested right on the
litigant which accrues the moment the proceedings in question
are instituted, the right of revision is merely a discretionary
power to be exercised by the revisional court according to
the circumstances of the case or exigencies of the situation.
A person cannot as a matter of right claim the proceedings
to be revised.
29. 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 and Eknath Shankarrao Mukkawar, 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
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Singh 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 and Eknath Shankarrao Mukkawar.
29.1 However, 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 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.
29.2 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 on the view we have taken, which
reads as under:
“386. Powers of the Appellate Court.—
xxx
(b) in an appeal from a conviction—
xxx
(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”
[2025] 4 S.C.R. 2527

Sachin v. State of Maharashtra

Although the said expression “but not so as to enhance the
same” is in the context of sub-clause (iii) of clause of (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 401 CrPC and enhance sentence awarded to
the accused/appellant.
29.3 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.
30. By placing reliance on Attorney General vs. Herman James Sillem,
(1864) 10 HLC 704, it was further observed in Antulay that directions
issued by this Court earlier with regard to the very same accused
dated 16.02.1984 had violated fundamental right guaranteed under
Articles 14 and 21 of the Constitution. Article 14 of the Constitution
provides, inter alia, that there shall be equal protection of the laws
within the territory of India. Moreover, Article 21 of the Constitution
states that no person shall be deprived of his life or personal liberty
except in accordance with the procedure established by law. The
aforesaid observations in Antulay are apposite to the present case
also by way of analogy. In the instant case, the accused-appellant who
had the right to file an appeal against the conviction and sentence
could not have been worse-off and be at the receiving end when
he had, in fact, sought for setting aside of the conviction and the
sentence, by being told by the appellate court (High Court herein)
that not only would the conviction be confirmed but the sentence
would also be enhanced.
31. In this regard, it must be noted that for exercise of powers of the
appellate court for enhancement of sentence in an appeal filed either
by the State or the complainant or the victim, the CrPC provides that
the appellate court can reverse the finding and sentence and acquit or
discharge the accused or order him to be retried by a court competent
to try the offence or alter the finding by maintaining the sentence or
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with or without altering the finding, alter the nature or the extent, of
the sentence but not so as to enhance the same. Thus, the power
to enhance the sentence can be exercised by the appellate court
only in an appeal filed by the State, victim or complainant provided
the accused has had an opportunity of showing cause against such
enhancement. It is further provided 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 the order of sentence under appeal. Therefore,
even in an appeal for enhancement of sentence, unless the conditions
prescribed in the form of provisos are complied with by the appellate
court, there cannot be an enhancement of sentence. Obviously in such
an appeal for enhancement of sentence, the convict or the accused
is the respondent and therefore there cannot be enhancement of
sentence unless the accused or convict has been heard.
32. However, under the scheme of Section 386 vis-à-vis in an appeal
for enhancement of sentence there can also be an acquittal of the
accused as per sub-clause (i) of clause (c) of Section 386. But, on
the other hand, in an appeal from a conviction, it has been expressly
stated that there cannot be enhancement of the sentence. Therefore,
while in an appeal for enhancement of sentence filed by the State,
the accused can make out a case for acquittal or discharge or retrial,
in the case of an appeal from conviction the respondent in such an
appeal, namely the State or the victim or the complainant cannot
seek enhancement of the sentence than what has been awarded
by the trial court. The above distinction can be explained by way of
a latin maxim which has been discussed by Ujjal Bhuyan, J., while
in the Bombay High Court1, in the following words:
“40. In this connection we may refer to the maxim reformatio
in peius. It is a latin phrase meaning a change towards the
worse i.e., a change for the worse. As a legal expression
it means that a lower court judgment is amended by a
higher court into a worse one for those appealing it. In
many jurisdictions, this practice is forbidden ensuring that
an appellant cannot be placed in a worse position as a
result of filing an appeal. When the above phrase is prefixed

1 Jyoti Plastic Works P. Ltd. v. UOI & Others, 2020 SCC Online Bom 2276
[2025] 4 S.C.R. 2529

Sachin v. State of Maharashtra

by the words ‘no’ or ‘prohibition’, which would render the
maxim as no reformatio in peius or prohibition of reformatio
in peius, it would denote a principle of procedure as per
which using a remedy available in law should not aggravate
the situation of the person who avails the remedy. In other
words, a person should not be placed in a worse position
as a result of filing an appeal. No reformatio in peius or
prohibition of reformatio in peius is a part of fair procedure
and thus by extension can also be construed as part of
natural justice. It is not only a procedural guarantee but
is also a principle of equity.”
(underlining by us)

33. The rationale of the above can be explained in simple language by
stating that no appellant by filing an appeal can be worse-off than
what he was. That is exactly what we are seeking to reiterate in our
judgment having regard to the facts of the present case.
34. In the instant case, the appellant-accused was charged with offence
under Section 3(a) punishable under Section 4 of the POCSO Act
and under Section 363-A, 376 of the IPC and Section 3(1)(xii) and
3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention
and Atrocities) Act. But the appellant herein was convicted by the
Special Court vide order dated 24.11.2014 as under:
“ORDER
Accused Sachin Shivaji Dhongade is hereby convicted
u/Sec. 235(2) of the Code of Criminal Procedure, for
the offence under Sec. 3(a) punishable under Sec. 4
of the Protection of Children from Sexual Offences Act,
2012, and sentenced to suffer Rigorous Imprisonment
for seven years and to pay fine of Rs. 2000/- (Rs.
Two thousand) and in default to undergo rigorous
imprisonment for two months.
The accused is hereby acquitted under Section 235(1)
of the Code of Criminal Procedure, for the offence
punishable under Sec. 363-A of the Indian Penal
Code and under Section 3(1)(xii) and 3(2)(v) of the
Scheduled Castes and Scheduled Tribes (Prevention
of Atrocities) Act.
2530 [2025] 4 S.C.R.

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However, the offence under Section 376 of Indian
Penal Code is merged in the offence u/Sec. Sec. 3(a)
punishable under Sec. 4 of the Protection of Children
from Sexual Offences Act, 2012, and, therefore, no
separate punishment is awarded.
The accused is in jail since 23.09.2013; therefore,
set off be given for the period which he has already
undergone, under Sec. 428 of Criminal Procedure
Code”
34.1 In Criminal Appeal No.30 of 2015 filed by the accused, the
High Court while maintaining the findings recorded by learned
Special Judge to the effect that the accused had committed
penetrative sexual assault on the victim however, found that
Section 5(m) and Section 6 of the POCSO Act and Section
376(2)(i) of the IPC were applicable although no charges
were framed regarding those offences alleged against the
appellant-accused by the High Court. In fact, the show-cause
notice was issued to the appellant by the High Court as to why
he should not be sentenced as per Section 6 of the POCSO
Act and for the offence under Section 376(2)(i) of the IPC.
The aforesaid proposed step was objected to by the learned
counsel for the appellant by contending that it amounted to
alteration/modification of the charge which was impermissible
in the accused’s appeal. Plea was also made for hearing on
the point on the next date. Hence, a direction was issued to
list the case on 02.03.2016 and that the accused, who was in
Central Jail, Nagpur was to be produced before the Court on
02.03.2016 at 11.30 a.m. On 02.03.2016, the order recorded
is as follows:
“In view of the above, I maintain the findings recorded
by the learned Special Judge that the accused has
committed penetrative sexual assault on the victim.
However, considering the provisions of Section 5(m)
and Section 6 of the POCSO Act, 2012 and Section
376(2)(i) of the Indian Penal Code, show cause
notice is given to the appellant as to why he should
not be sentenced as per Section 6 of the POCSO
Act, 2012 and for the offence under Section 376(2)
(i) of the Indian Penal Act.
[2025] 4 S.C.R. 2531

Sachin v. State of Maharashtra

Shri Anuj Hazare, learned Advocate has submitted
that the course proposed by this Court cannot be
adopted as it will amount to altering/modifying the
charge and it is not permissible. The appellant would
be granted hearing on the point on the next date
and the submission made by the learned Advocate
for the appellant will be considered while dealing
with the point.
List the appeal for further hearing on the point on
which notice is given to the appellant, on 02-03-
2016. It is stated that the appellant is in Central Jail,
Nagpur. The appellant shall be produced before this
Court on 02-03-2016 at 11-30 a.m.”
34.2 Thereafter, on 08.03.2016, it was recorded by the High Court
that there was a failure on the part of the learned Special
Judge to consider Sections 5(m) and 6 of the POCSO Act
and Section 376(2)(i) of the IPC by losing sight of the fact
that the accused had filed the appeal assailing the conviction
and sentence imposed on him. The matter was remitted to
the learned Special Judge for considering the imposition
of sentence for the offence punishable under the aforesaid
Sections. The operative portion of the order of the High Court
dated 26.02.2016 reads as under:
“Hence, the following order:
i) The conviction of the appellant for the charge
that the appellant has committed penetrative
sexual assault on the victim aged 4 years is
confirmed.
ii) It is recorded that the appellant is convicted
commission of the aggravated penetrative
sexual assault as per Section 5 (m) of the
Protection of Children from Sexual offences
Act, 2012 and Section 376(2)(i) of the Indian
Penal Code.
iii) It is held that the appellant is liable for aggravated
penetrative sexual assault under Section 6 of
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the Protection of Children from Sexual Offences
Act; 2012 and tor rape under Section 376(2)(i)
of the Indian Penal Code.
iv) As per Section 6 of the Protection of Children
from Sexual Offences Act, 2012 the minimum
sentence is of ten years which may extend to
imprisonment for life. Similarly, under Section
376(2)(i) of the Indian Penal Code, the minimum
sentence is ten years which may extend to
imprisonment tor life.
v) The matter is remitted to the learned Special
Judge to consider the quantum of sentence
which is to be imposed on the appellant.
Needless to say that the learned Special Judge
shall hear the appellant/accused on the point of
quantum of sentence.
The appeal is disposed of in the above terms.”
34.3 On remand, the learned Special Judge on 28.04.2016 in
continuation of his judgment and in the view taken by the High
Court recorded that the accused was directed to be produced
from Central Jail, Nagpur on 25.04.2016 and he was heard
on the quantum of sentence as per the operative portion of
the order dated 28.04.2016 which reads as under:
“ORDER
1. The accused Sachin Shivaji Dhongade is
heareby convicted of the offence under Section 5
(m) punishable under Section 6 of the protection
of Children from Sexual Offence Act, 2012 Vide
Section 235(2) of Cr.PC and sentenced to suffer
life imprisonment and to pay fine of Rs. 5000/-
(Five thousand) in default of suffer further rigorous
imprisonment for six months.
2. The accused Sachin Shivaji Dhongade is also
convicted of the offence punishable under section
376(2) (i) of the Indian Penal Code vide section 235
(2) of Cr.PC, but no separate sentence is provided.
[2025] 4 S.C.R. 2533

Sachin v. State of Maharashtra

3. The period of detention, if any, undergone by the
accused during investigation, inquiry, or trial shall be
set off against the term of impugned imposed on him
vide Sec. 428(1) of the Code of Criminal Procedure.
4. The copy of order be supplied free of cost to the
accused.
5. Amount of Rs. 2000/- already paid as fine.
Hence accused is required to pay only Rs.3000/-
towards fine.”
34.4 Thus, the appellant-accused was convicted under Sections
5(m) and 6 of the POCSO Act to suffer life imprisonment and
to pay fine of Rs.5,000/- in default of suffer further rigorous
imprisonment for six months and also convicted for offence
punishable under Section 376(2)(i) of the IPC for which no
separate sentence is provided. This was in lieu of the earlier
order of sentence imposed by the Special Court. In an appeal
filed by an accused against a judgment of conviction and
sentence, he cannot be remitted to the trial court to impose
a higher sentence on him !
34.5 Such an order was passed by the Special Court simply
in compliance with the order of the High Court. When the
appellant-accused appealed against this order in Criminal
Appeal No.311 of 2021 before the Division Bench of the High
Court, this time, the Division Bench of the High Court realised
that orders dated 26.02.2016 and 08.03.2016 in Criminal
Appeal No.30/2015 had to be assailed by way of a special
leave petition before this Court. The aforesaid criminal appeal
was listed before the Division Bench on 17.02.2025 and was
adjourned by two weeks.
34.6 In the above facts and circumstances, we find that the learned
Single Judge of the High Court was not right in remanding the
matter to the Special Court for enhancing the sentence to be
imposed on the appellant-accused, that too, in an appeal filed
by accused seeking setting aside of a judgment of conviction
and sentence imposed on him. Consequently, the Special
Court was not right in enhancing the sentence from rigorous
2534 [2025] 4 S.C.R.

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imprisonment for seven years, which was earlier awarded, to
life imprisonment by following the aforesaid direction. Noting
this aspect of the matter, the Division Bench of the High Court
rightly indicated that the earlier judgment of the High Court as
well as the subsequent order enhancing the sentence passed
by the Special Court ought to be assailed before this Court,
and it has been rightly assailed through the Supreme Court
Legal Services Committee.
35. It is noted that the appellant herein, while initially subjected to
imprisonment of seven years, has completed actual sentence of
eleven years and eight months. We find the orders of the High Court
and consequently of the Special Court to be erroneous and the same
are liable to be set aside. In these circumstances, the impugned
judgment dated 26.02.2016 and subsequent orders passed therein
on 02.03.2016 as well as the order dated 08.03.2016 in Criminal
Appeal No.30/2015 are set aside. Consequently, the order of the
Special Court dated 28.04.2016 passed in Special (POCSO) Case
No.5/2013 convicting and sentencing the appellant herein to suffer
life imprisonment and to pay fine of Rs.5,000/-, in default to suffer
rigorous imprisonment for six months is set aside.
36. Now, what follows is that the original judgment of the Special
Court convicting the appellant and imposing a sentence of rigorous
imprisonment for seven years survives. However, the unfortunate
reality is that in view of the impugned judgment and orders, the
appellant has undergone eleven years of actual sentence.
37. In the circumstances, we find that to do the complete justice in the
matter, instead of remanding the Criminal Appeal No.30/2015 on the
file of the High Court, we exercise our powers under Article 142 of
the Constitution of India and restore the original sentence imposed
on the appellant herein which is seven years of imprisonment.
Since the appellant has completed eleven years and eight months
of incarceration i.e. a sentence more than that originally imposed
on him, we find that the ends of justice would be met if instead of
rehearing his appeal on the original sentence, the matter is concluded
and the appellant is released from jail forthwith. Ordered accordingly.
38. Consequently, the Criminal Appeal No.30/2015 pending on the file
of the High Court of Judicature at Bombay Nagpur Bench, Nagpur
is rendered infructuous and therefore, the same stands disposed of.
[2025] 4 S.C.R. 2535

Sachin v. State of Maharashtra

39. Resultantly, the respondent-State and Superintendent, Nagpur
Central Jail, Maharashtra are directed to release the appellant from
the jail forthwith.
40. The appeals are allowed and disposed of in the aforesaid terms.

Result of the case: Appeals disposed of.

†
Headnotes prepared by: Nidhi Jain