Criminal Appeal No 197 of 1990
From the Judgment and Order dated 15919891891989 of the Bombay High Court in Crl
A No 284 of 1987
Mr Satish Vig for the Appellant
Mr AS Bhasme for the Respondent
The Judgment of the Court was delivered by 857 section RATNAVEL PANDIAN J
Special leave granted
The notice was issued on the Special Leave Petition limited to the question whether the High Court had jurisdic tion to enhance the sentence without issuing notice and affording to the appellant an opportunity of showing cause against such enhancement of the sentence or in the absence of an appeal by the State for enhancement of sentence on the ground of inadequacy
This appellant along with two others were convicted for murdering Kumari Mangala in furtherance of their common intention and causing disappearance of evidence of the said offence with the intention of screening themselves from legal punishment under Section 302 read with Section 34 IPC and under Section 201 read with Sec
34 IPC respectively and sentenced to suffer imprisonment for life under the first count and to suffer rigorous imprisonment for a period of 3 years and to pay a fine of Rs2500 each with a default clause and directed both the substantive sentences to run concurrently
They all preferred criminal appeal No 284 of 1987 before the High Court of Bombay Bench at Aurangabad which set aside the conviction of all the convicted accused inclu sive of this appellant under Section 302 read with Sec
34 IPC and the conviction of other two under Section 20 1 read with Sec
34 IPC but confirmed the conviction of this appel lant under Section 201 IPC and enhanced the sentence to seven years rigorous imprisonment
The High Court neither issued notice to the appellant nor afforded him any opportunity of showing cause against the said enhancement while enhancing the sentence
Admitted ly there was no appeal by the State for enhancement of sentence under Section 377 Cr
PC on the ground of its inadequacy Let punishment fit the crime  is one of the main ob jects of the sentencing policy
To achieve this object the Code of Criminal Procedure empowers the High Court to en hance the sentence in appropriate cases where the sentence awarded by the Subordinate Courts is grossly inadequate or unconscionably lenient or flea bite  or is not commensurate with the gravity of the offence
The High Court enjoys the power of enhancing the sentence either in exercise of its revisional jurisdiction under Section 397 read with Sec
401 or in its appellate jurisdiction under Section 37 read with Sec
386c of the Criminal Procedure Code hereinafter referred to as the Code  subject to the 858 provisos 1 and 2 to Sec
386 of the Code
It may be stated in this connection that it is permissible for the High Court while exercising its revisional jurisdiction under Section 397 read with Sec
401 IPC to exercise the power of a Court of Appeal under Section 386c for enhance ment of sentence
This Court in Bachan Singh etc
vs State of Punjab 1980 1 SCR 645 while dealing with the revisional powers of the High Court has ruled thus in respect of the petition which was filed under Section 401 Cr
PC for the exercise of the High Court s power of revision it was permissible for it to exercise the power of a Court of appeal under Section 386 for enhancement of the sentence   
The High Court s power of revision in the case of any proceeding the record of which has been called for by it or which otherwise comes to its knowledge has been stated in section 401 Cr
PC to which reference has been made above
That includes the power conferred on a Court of Appeal under Section 386 to enhance or reduce the sentence Under Section 3771 of the Code the State Government in any case of conviction on a trial held by any Court other than the High Court is empowered to direct the public prose cutor to present an appeal to the High Court against the sentence on the ground of its inadequacy
Under sub section 2 of Section 377 the Central Government under the circum stances stated therein is empowered to direct the public prosecutor to present an appeal to the High Court for en hancement of sentence
Before the introduction of this Section 377 on the recommendation of the Law Commission in its 4 1st Report any error in sentencing could be remedied only by the exercise of the revisional power
of the High Court
However the High Court notwithstanding of the exer cise of its powers under the appellate jurisdiction in an appeal preferred under Section 377 of the Code have powers to act suo motu to enhance the sentence in appropriate cases while exercising its revisional jurisdiction even in the absence of an appeal against the inadequacy of the sentence as provided under Section 377
In Nadir Khan vs The State Delhi Administration 1975 2SCC 406 wherein a question was raised that the High Court in revision under Section 40 1 Cr
PC has no juris diction or power to enhance the 859 sentence in the absence of an appeal against the inadequacy of sentence under Section 377 Goswami
J characterised that question as an unmerited doubt on the undoubted juris diction of the High Court in acting suo motu in criminal revision in appropriate cases and said The attempt has to be nipped in the bud
Dealing with that question he ob served as follows It is well known and has been ever recognised that the High Court is not required to act in revision merely through a conduit application at the instance of an aggrieved party
The High Court as an effective instrument for administra tion of criminal justice keeps a constant vigil and wherev er 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
The High Court in a given case of public importance eg in now too familiar cases of food adulteration reacts to public concern over the problem and may act suo motu on perusal of newspaper reports dis closing imposition of grossly inadequate sentence upon such offenders
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 sec tions
It is true the new Code has expressly given a right to the State under Section 377 Cr
PC 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 sen tence 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 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 386ciii Cr
PC are clearly supplemental to those under Section 377 whereby appeals 860 are provided for against inadequacy of sentence at the instance of the State Government or Central Government as the case may be
 See also Lingala Vijay Kumar and Others vs The Public Prosecutor  In Surjit Singh and Others vs State of Punjab 1984 Supp
SCC 5 18 the facts disclosed that the High Court while disposing an appeal preferred under Section 374 sub section 2 enhanced the sentence by imposing additional sentence of a fine of Rs 5000 with a default clause in addition to the sentence of life imprisonment inflicted by the Trial Court without issuing show cause notice and without affording an opportunity to be heard
This Court while allowing the appeal held thus Rules of natural justice as also the prescribed procedure require that the sentence imposed on the accused cannot be enhanced without giving notice to the appellants and the opportunity to be heard on the proposed action
 In a recent judgment in Sahab Singh  Others vs State of Haryana JT  it has been observed 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 40 1 of the Code by issuing notice of enhancement and heating 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 the fine
The High Court clearly acted without jurisdiction
 Section 386 of the Code deals with the power of the appellate Court in disposing of an appeal preferred under Section 374 and also in case of an appeal under Section 377 or 378 of the Code
Under clause b iii of Section 386 the appellate Court may 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
Under clause c iii of Section 386 the Appel late Court may in an appeal for enhancement of sentence with or without altering the finding alter the nature or the extent or the 861 nature and extent of the sentence so as to enhance or reduce the same
From the above discussion it is clear that the High Court both in exercise of its revisional jurisdiction under Section 397 read with Sec
40 1 Cr
PC and its appellate jurisdiction under Section 377 read with Sec
386c of Cr
PC in matters of enhancement of sentence should give the accused a reasonable opportunity of showing cause against such enhancement as comtemplated under the first proviso to Section 386 as well under Sub Section 3 of Section 377 of the Code
As pointed out in Surjit Singh s case the rules of natural justice as also the prescribed procedure require issuing of notice to the appellant and affording an opportunity to be heard on the proposed action for enhancement of sentence
In the back drop of this legal position we may revert to the case on hand
The High Court has enhanced the sen tence unmindful of the relevant provisions of the Code of Criminal Procedure and also the rules of natural justice and by over stepping its jurisdiction adopted a leeway enhancing the sentence from 3 years to 7 years for the conviction under Section 201 IPC which exercise of powers in violation of the prescribed procedure is impermissible for the rea sons stated albeit
We therefore set aside the order of the High Court enhancing the sentence to 7 years and restore the order of the trial Court inflicting the sentence of three years rigorous imprisonment and the fine of Rs2500 with the default clause
The appeal is allowed to the extent herein indicated
GN Appeal allowed


Summary:
The land in dispute was agreed to be sold in favour of the appellant under an agreement
Subsequently a third party in execution of a decree got the property attached
The sale deed was executed thereafter
A question arose as to the validity of the sale
The High Court held that the sale would be subject to attachment
Allowing the appeal by special leave the Court HELD The agreement for sale creates an obligation attached to the ownership of the property
The attaching creditor is entitled to attach only the right title and interest of the judgment debtor
Hence if an agreement for sale is entered into before attachment the attachment cannot be free from the obligation so incurred and the attaching creditor will not get any right higher than the judgment debtor had on the date of the attachment
He cannot ignore that obligation and proceed to bring the property to sale as if it remained the absolute property of the judgment debtor
835C 834F 835E Accordingly though section 64 CPC is intended to protect the attaching creditor but if the subsequent conveyance is in pursuance of an agreement for sale which was entered into before the attachment the contractual obligation arising therefrom must be allowed to prevail over the rights of the attaching creditor
The rights of the attaching creditor shall not be allowed to override the contractual obligation arising from the antecedent agreement for sale of the at tached property
835D E Paparaju Veeraraghavayya vs Killaru Kamala Devi  Ors AIR 1935 Mad 193 Veerappa Thevar  Ors
CS Venkataram ma Aiyar  Ors
 AIR 1935 Mad 872 Angu Pillai vs
MSM Kasiviswanathan Chettiar  Puma Chandra Basak vs Daulat Ali Mollah AIR 1973 Cal 432 Rango Rama chandra vs Gurlingappa 833 Chinnappa AIR 1941 Bom
198 Yashvant Shankar Dunakhe vs Prayarji Nurji Tamboli AIR 1943 Bom
145 and Kochuponchi Varughese vs Quseph Lonan AIR 1952 Travancore Cochin 467 approved
Mohinder Singh  Anr
vs Nanak Singh  Anr AIR 1971 Pb  Haryana 381 overruled
The sale in the instant case would not thus be subject to the attachment
The purchaser would get good title de spite attachment
833F 834D