Criminal Appeal No 104 of 1990
From the Judgment and Order dated 19
1983 of the Punjab and Haryana High Court in Crl
A No 199 DB83
BS Malik for the Appellants
Mahabir Singh for the Respondent
The Judgment of the Court was delivered by AHMADI J
Special leave granted
The seven appellants before us were convicted by the learned Additional Sessions Judge Sonepat on three counts and sentenced as under 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 Rs200 under Section 302149 IPC All the said substantive sentences were directed to run concurrently
514 The seven appellants preferred an appeal against the order of conviction and sentence passed by the learned Trial Judge
The High Court while dismissing their appeal clari fied that their convictions were on six counts and altered the fine awarded under Section 302149 IPC from Rs200 to Rs5000 in respect of each appellant per count ie Rs30000 per appellant
Being aggrieved by this enhancement of fine the appellants have preferred this appeal limited to the question of this enhancement only
Section 374 of the Code of Criminal Procedure  the Code  hereinafter provides for appeals from conviction by a Sessions Judge or an Additional Sessions Judge to the High Court
Section 377 entitles the State Government to direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy
Sub section 3 of Section 377 says that when an appeal has been filed against the sentence on the ground of its inadequacy the High Court shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause the accused may plead for his acquittal or for the reduction of the sentence
Admittedly no appeal was preferred by the State Government against the sentence imposed by the High Court on the conviction of the appellants under Section 302149 IPC Section 378 provides for an appeal against an order of acquittal
Section 386 enumerates the powers of the appellate court
The first proviso to that section states that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement
Section 397 confers revisional powers on the High Court as well as the Sessions Court
It inter alia provides that the High Court may call for and examine the record of any proceeding before any inferior criminal court situate within its jurisdiction for the purposes of satisfy ing 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 any inferior court
Section 40 1 further provides that in the case of any pro ceedings 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 of the Code
Sub section 2 of Section 401 provides that 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
Sub section 4 next provides that where under this Code an appeal lies and no appeal is brought no proceeding by way of revision shall be entertained at the 515 instance of the party who could have appealed
It is clear from a conjoint reading of Section 377 386 397 and 401 that if the State Government is aggrieved about the inade quacy of the sentence it can prefer an appeal under Section 3771 of the Code
The failure on the part of the State Government to prefer an appeal does not however preclude the High Court from exercising suo motu power of revision under Section 397 read with Section 40 1 of the Code 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 exer cising 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 either 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
Now in the present case the appeal was filed under Section 3742 of the Code by the convicts against the order passed by the Additional Sessions Judge
No appeal was filed by the State under Section 377 1 of the Code against the sentence awarded by the trial court for the offence under Section 302149 IPC on the ground of its inadequacy
Nor did the High Court exercise suo motu revisional powers under Section 397 read with Section 401 of the Code
If the High Court was minded to enhance the sentence the proper course was to exercise suo motu powers under Section 397 read with Section 401 of the Code by issuing notice of enhancement and heating the convicts on the question of inadequacy of sen tence
Without following such procedure it was not open to the High Court in the appeal filed by the convicts to en hance the sentence by enhancing the fine
The High Court clearly acted without jurisdiction
For the above reasons we are clearly of the opinion that the appeal must succeed
In the result we allow this appeal and set aside the order of the High court insofar as it enhances the sentence by enhancing the fine from Rs200 to Rs5000 per count per appellant
In other words we restore the order of sentence passed by the Trial Court under Section 302149 IPC
The additional fine if paid will be refunded
NPV Appeal al lowed


Summary:
The appellant a Public Limited Company had two estab lishments in the State of Bihar
The holidays available to the employees of the appellant company were provided by the settlement dated 14th March 1971
The settlement provided for a total number of 18 holidays for office staff and 14 holidays for the factory staff
There was a dispute between the management and the employees as to whether the International Labour Day 1st May which was declared as a mandatory holiday under the Bihar Industrial Establishments National and Festival Holidays and Casual Leave Act 1977 should be a paid holi day in addition to the existing holidays
While the manage ment wanted to declare 1st May as holiday by adjusting the holidays allowed in the settlement employees wanted it to be given as an additional holiday
Negotiations having failed and the conciliation officer being unable to bring about settlement the statutory authorities directed the company to declare 1st May as holiday in addition to the holidays provided for in the settlement
The appellant company filed a writ Petition before the High Court chal lenging the direction of the authorities
Dismissing the Writ Petition the High Court held that the holiday on 1st May prescribed under the Act being compulsory in nature must be in addition to the privileges already granted to the workmen under the agreement
Hence the appeal by the Compa ny
Allowing the appeal by special leave this Court
HELD Section 3 of the Bihar Industrial Establishments National and Festival Holidays and Casual Leave Act 1977 provides for three National holidays one International Labour Day and four 403 festival holidays
It thus statutorily fixes eight paid holidays for out of them are left to the choice of the management and employees for festival occasions
These eight holidays however are not in addition to the holidays that are mutually agreed upon in the settlement
They are the minimum holidays which the employees are entitled to
If the employees are entitled to more than eight holidays under any contract or usage applicable to the said establishment or under any other law for the time being in force those rights and privileges are saved by Section 13
This is the requirement of the statute
407B D In the present case the festival holidays have not been identified or specified in the Settlement
They have to be selected and declared as holidays with notice to employees every year
It is only three National holidays that have been specified therein in addition to Vishwakarma Puja day for the factory staff and factory general staff
Now the statute prescribes the same three National holidays besides International Labour Day and four festival holidays
But these 8 holidays are not to the exclusion of or in addition to the total number of holidays agreed upon under the set tlement
The total number of 14 holidays under the settle ment as against 8 holidays under the statute remains undis turbed by section 13 of the Act since it is more favourable to the employees than the rights and privileges conferred by the Act
That being the position the management would be entitled to adjust the International Labour Day as a paid holiday within the fourteen days allowed under the settle ment
The demand of the employees that it should be in addition to fourteen days has no support either under the settlement or by the terminology of the statute
468E H 469A Tata Oil Mills Co vs KV Gopalan  Ors  referred to