ORDER
Anup Deb, J.
1. By filing this revision petition the three accused persons (hereinafter referred to as the Convicts) namely, Smt. Saraswati Devi, Shri Govind Agarwal and Shri Bharat Prasad challenged the judgment of conviction and order of sentence passed by the learned Sessions Judge (South and West) in Criminal Appeal No. 1 of 1998 on the 18th September, 1998 wherein, the ld. Sessions Judge (South and West) dismissed the appeal and upheld the Judgment and Order of the ld. Judicial Magistrate, East Sikkim passed on the 4th May, 1990 in Criminal Case No. 34 of 1984 with modifications.
2. After hearing the argument of Mr. Ghosh, Advocate for petitioner and Mr. Sharma, Public Prosecutor at length it is considered not necessary to examine the depositions of the witnesses. Although revisional power of the High Court under Section 439 read with Section 435 of old Cr.P.C. corresponding to Section 401 and 397 of new Cr.P.C., is as wide as the power of Court of appeal under Section 423 of the old Cr.P.C. and Sections 385(2) and 386 of new Cr.P.C., yet it is to be exercised only in exceptional cases when there is a glaring defect in the procedure or where there is a manifest error on point of law which has consequently resulted in flagrant miscarriage of justice. The High Court is not expected to act under Section 435 or 439 of old Cr.P.C. and its corresponding provisions under the new Cr.P.C. as if it is hearing an appeal.
3. After considering the facts and materials on record, the Convict No. 1, Smt. Saraswati Devi was sentenced by the learned Judicial Magistrate, East to pay a fine of Rs. 100/- or in default of payment of fine to undergo simple imprisonment for one week and the Convict No. 2, Govind Agarwal and the Convict No. 3, Bharat Prasad were sentenced to undergo simple imprisonment till the rising of the Court and to pay a fine of Rs. 200/- each or in default of payment of fine to undergo simple imprisonment for one month each. This judgment of conviction and order of sentence were challenged by preferring an appeal before the learned Sessions Judge (East and North). Mr. Tashi Wangdi, the learned Sessions Judge (East and North) expressed his inability to hear the appeal. The appeal was, therefore, transferred to the file of Mr. B.C. Sharma, learned Sessions Judge (South and West).
4. Charges were framed under Secions 325/448/34 of Indian Penal Code (in, short IPC) and the convicts were convicted under Section 323 of the IPC.
5. Mr. Ghosh appearing for the convicts submits that the learned Sessions Judge (South and West) enhanced the sentence by increasing the amount of fine from Rupees 100/- to Rs. 500/- in respect of Smt. Saraswati Devi, Convict No. 1 and enhanced the sentence of Shri Govind Agarwal, Convict No. 2 and Shri Bharat Prasad, Convict No. 3 by increasing the fine from Rs. 200/-to Rs. 500/- each instead of undergoing Imprisonment or In default of payment of fine the convicts were sentenced to undergo simple imprisonment for one month each. Both’ Mr, Ghosh and Mr. Sharma submits that the learned Sessions Judge enhanced the sentence by Increasing the amount of fine of Rs. 100/- and Rs. 200/- to Rs. 500/-.
6. Mr. N.P. Sharma, Public Prosecutor, appearing for the State concedes that the State did not present any appeal against the sentence on the ground of its inadequacy as required under Section 377 of Code of Criminal Procedure. Mr. Ghosh submits that the power of enhancement of sentence on the ground of Its inadequacy is vested with the High Court against the sentence provided under Sub-section (1) of Section 377 of the Cr.P.C.
7. Mr. Ghosh has drawn my attention to the fact that the Public Prosecutor, Mr. B.C. Sharma, learned Sessions Judge (South and West) as he then was appeared in the Criminal Case No. 34 of 1984 before the Court of the Judicial Magistrate, East and North as Public Prosecutor on 7th April, 1984, 17th November, 1989 and 30th November, 1989.
8. By filing an affidavit on 7th April, 2000 which was served upon Mr. Sharma, the learned Public Prosecutor, the convicts have stated that Mr. B.C. Sharma, learned Sessions Judge who heard the appeal was at one time the Public Prosecutor and In his capacity as Public Prosecutor Mr. B.C. Sharma appeared for the prosecution against these convicts before the learned trial Court on several dates and this fact was brought to the notice of learned Sessions Judge at the time of hearing of the appeal but no order was passed by the learned Sessions Judge in this respect. In spite of bringing this fact to the notice of Mr. B.C. Sharma, learned Sessions Judge, the learned Sessions Judge heard and disposed the appeal convicting the accused persons. Mr. N.P. Sharma, learned Public Prosecutor submits that he did not go through the records of the Court of the Judicial Magistrate (East and North) and that Is why he did not bring this fact to the notice of the learned Sessions Judge.
9. It is a well settled position of law that a conjoint reading of Sections 377, 386, 397 and 401 would indicate that If the State Government is aggrieved about inadequacy of the sentence, It can prefer an appeal under Section 377(1) of the Code. The failure on the part of State Government to prefer an appeal, does not, however, precludes the High Court from exercising suo motu power of revision under Section 397 read with Section 401 of the Code since High Court Itself is empowered to call for the record of the proceeding of any Court subordinate to it. But before the High Court exercises Its suo motu revlsional 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 either in person or through the 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. But the Sessions Judge does not have any power to enhance the sentence because the appeal was preferred before the Court of Sessions Judge under Section 374 of the Cr.P.C. under Section 397, the High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situated within its local jurisdiction for the purpose of satisfying itself 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. But in the present case, the Sessions Judge (South and West) sitting in appeal under Section 374 of Code enhanced the sentence which is not permissible under the law and has to be quashed. Mr. Ghosh has drawn my attention to the decision of the case Sk. Golap v. Bhuban Chandra Panda reported in AIR 1991 Cal 295 to show that where a Judge of a High Court had earlier appeared on behalf of the writ petitioner, while being on bar, in earlier writ proceeding with respect of the self same subject-matter, the decision by him was violative of principles of natural justice. It has been observed in the aforesaid decision that one of the principle of natural justice universally recognised is that no man shall be a Judge of his own cause. The relevant paragraph is quoted below: —
7. The decision in Manak Lai’s case is illustrative of the applicability of the principle nemo debet esse judex in propria causa. Against the background of the said ruling and the facts and circumstances of the present case, there is no doubt that the learned single Judge ought not to have heard and decided the instant case. It is farthest from anyone’s mind to suggest that as a matter of fact his decision of the case was influenced by his past professional association with the writ petitioners. We have no reluctance in assuming that the learned Judge, when he heard this matter initially, might not have remembered that he had appeared on behalf of the writ petitioners in the previous writ proceeding. We have no hesitation In believing also that he had no personal contract with the writ petitioners who were his erstwhile clients since the previous writ petition was not decided in the recent past. These considerations do not, however, detract from the validity of the legal objection raised on behalf of the appellants. It is not necessary for the appellants to establish that the learned single Judge actually had a bias and that, the said bias was the cause of the adverse verdict. The test to be applied in such cases is not whether in fact a bias has affected the judgment but whether there was a real likelihood of bias. The answer depends not upon what actually was done but upon what might appear to be done. Justice must be rooted in confidence; and confidence is destroyed when right minded people may have reason to go away thinking : “the Judge might have been biased.”
10. Mr. Ghosh then relied upon the decision of the case Mst. Aqeela v. State of U.P. reported in AIR 1999 SC 1596. Paragraph 2 which is relevant for the purpose of the case reads as follows: —
2. Without meaning to swell on this aspect of the matter any further the barest minimum what we say is that there has occasioned a failure of justice. That factor alone is enough for us to allow these appeals, which we hereby do, setting aside the impugned judgment and order of the High Court and remit the matters back to it for fresh decision of the aforesaid three appeals on revival in accordance with law and on granting a fresh hearing. Sequelly, the orders passed in Criminal Revision No. 1917/ 79 are also set aside and the matter is put back as a tagged matter with the appeal now put before the High Court.
11. In this tiny State of Sikkim, number of criminal cases being very small the Judicial Magistrate and the Sessions Judges and other Presiding Officers while delivering any effective order or Judgment must go through the order sheets and records carefully. But in the present case it appears that learned Sessions Judge (South and West) has not done so.
12. In this type of cases, the test is not whether in fact a bias has affected the Judgment; the test always is and should be whether a litigant could reasonably apprehend that a bias attributable to a Judge might have operated against him in the final decision of the case or appeal. Justice must not only be done but must also appear to be done. I am not inclined to infer that there was bias on the part of Mr. B.C. Sharma, District and Sessions Judge (South and West), but at the same time, it should not be lost sight of the fact that Mr. Sharrna as Public Prosecutor appeared against these convicts before the Judicial Magistrate (East) and as Sessions Judge he. decided the appeal against the convicts and enhanced the sentence. He should have been careful and should have gone through the order-sheet.
13. Order passed by the learned Sessions Judge in the appeal has to be set aside. All the Judicial Officers excepting Sessions Judge (Special Division) who may hear this appeal, dealt with this criminal case at one stage or the other. Therefore, there is no other alternative but to transfer the Appeal to the Court of Sessions Judge (Special Division) to hear and dispose of afresh, according to law. The parties are directed to appear before the learned Sessions Judge (Special Division) on 1st May, 2000 and the Sessions Judge (Special Division) shall proceed with the hearing of the appeal on 1st May, 2000 and fix this matter on the top of the cause list. If necessary, the appeal should also be heard on 2nd May, 2000, if the hearing is not concluded on 1st May, 2000 and adjournment shall not be given to the parties.
14. The Revision is allowed with the above directions.
15. Lower Court records be sent to the Court of learned Sessions Judge (Special Division) forthwith.