Source: Sikkim High Court

Why in News?

Recently the matter of Karan Chettri v. State of Sikkim has gained attention due to the Sikkim High Court's review of the Trial Court's sentencing for gang rape under Section 376D IPC. The High Court emphasized its authority under Section 397 of the Criminal Procedure Code, 1973 (CrPC) to revise the sentence despite the State's failure to appeal, ensuring compliance with the statutory minimum punishment of twenty years imprisonment for such offences.

• The case highlights the High Court's authority to correct sentencing errors and ensure adherence to statutory minimum punishments, even in the absence of an appeal by the State.

What was the Background of Karan Chettri v. State of Sikkim?

• Karan Chettri v. State of Sikkim and Nima Sherpa @ Nani Ko Bau v. State of Sikkim, both cases arose from a common FIR.
• The accused was found guilty, and the trial Court had sentenced the appellants to 12 years of imprisonment for the offence of gang rape under Section 376D Indian Penal Code 1860(IPC).
• The appellants challenged their conviction by the Fast Track Court at Gyalshing, Sikkim, under various sections of the Indian Penal Code, including Sections 450 (house trespass), 376D (gang rape), and 376(2)(l).
• The Appeal is filed in Sikkim High Court.

What were the Court’s Observations?

• The division bench was reviewing the appeal filed by the accused against their conviction for gang rape by the trial Court.
• The Sikkim High Court affirmed its authority under Section 397 of CrPC to exercise revisional powers despite the State's failure to appeal an incorrect sentencing order.
• It emphasized that the State's neglect in not appealing against the erroneous sentence does not bar the High Court from utilizing its revision powers under Section 397 and Section 401 of CrPC to potentially enhance the sentence.
• The court stated that the convict must be duly notified and provided with an opportunity to be heard on the matter of sentencing, either personally or through legal representation.

What is BNSS?

Introduction

• Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS) is one of the three criminal law bills introduced by the Union Government to replace the Criminal Procedure Code, 1973 (CrPC).
• BNSS was passed in Lok Sabha on 20^th December 2023 and in Rajya Sabha on 21^st December 2023.
• On 25^th December 2023, the President gave her assent to the three new criminal code bills.

What is Section 438 of BNSS ?

About:

• Section 438 of BNSS deals with the calling for records to exercise powers of revision, which was dealt with under Section 397 of CrPC, earlier. It states that—
• The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling, for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement that he be released on his own bond or bail bond pending the examination of the record.

Explanation —All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of section 439.

• The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
• If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.

What is Section 442of BNSS?

• Section 422 of BNSS deals with the High Court's Powers of revisions which was dealt with under Section 401 of CrPC. It states that-
• 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 427, 430, 431 and 432 or on a Court of Session by section 344, 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 433.
• 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 advocate in his own defence.
• Nothing in this section shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction.
• Where under this Sanhita 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.
• Where under this Sanhita 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.

Case Law

• Easwaramurthy v. N. Krishnaswamy (2006), the Madras High Court held that the words 'direct that execution of sentence or order be suspended' mentioned in Section 397(1) of CrPC must be read 'dis-conjunctively' from words 'and if the accused is in confinement that he be released on bail or on his bond pending the examination of the record.
• Mohd. Hasim vs. State of Uttar Pradesh and Others (2016), where it was held that courts do not have discretion to reduce the sentence when there is a prescribed minimum sentence under the law.