G.L. Oza, J.
1. This petition has been submitted by the wife of a prisoner who, according to this petition, is an under-trial prisoner detained in Thane Central Prison (Maharashtra State).
2. This petition has been submitted under peculiar circumstances. It appears that one Kamalsingh s/o Ramsingh (for whom this petition is submitted) and two other persons, namely Shivgovind s/o Hargoyind and Punamchand s/o Bhuralal Verma, were convicted and sentenced to one year rigorous imprisonment each under Section 366, I.P.C. by the Additional Sessions Judge Indore. Shivgovind and Punam-chand were also convicted for offences under Section 354, I.P.C. and sentenced to four months rigorous imprisonment each. Both the sentences were to run concurrently,
3. These three persons preferred an appeal to this Court which was Criminal Appeal No. 391 of 1969 and was heard by me and disposed of on 25-1-1971. In this judgment, after notice for enhancement, the appeal filed by the appellants against their convictions was dismissed and their sentence was enhanced from one year's rigorous imprisonment to seven years' rigorous imprisonment and fine. After the judgment of this Court according to the instant petition Punamchand and the petitioner's husband Kamalsingh absconded and Shivgovind filed a special leave petition and ultimately an appeal to Hon'ble Supreme Court of India reported in AIR 1972 SC 1823. That appeal was allowed and the Supreme Court set aside the order of this Court for enhancement of sentence but maintained the sentence awarded by the trial Court which was one year's rigorous imprisonment. However the two others Kamalsingh and Punamchand did not file any appeal to the Supreme Court as they were then absconding. It is alleged that Kamalsingh was arrested on 3-1-1975 and he is undergoing sentence and is in detention in the Thane Central Prison. By this petition it is prayed that the sentence on Kamalsingh be also reduced from seven years to one year.
4. When this petition was listed for hearing, learned Advocate General who was present, accepted to assist this Court on the question as to whether this Court can do anything in the matter.
5. Admittedly, the appeal by this Court was disposed of by judgment dated 25-1-1971 and by it the sentence of Kamalsingh was enhanced to that of seven years. One of the three appellants preferred an appeal to the Supreme Court and the Supreme Court set aside the order of this Court as regards enhancement and maintained the sentence awarded by the trial Court and now after such a long lapse of time the instant petition has been submitted.
6. It is no doubt true that this Kamalsingh along with two others was convicted for offence under Section 366 and that there was nothing to distinguish the cases of these three persons on facts and the trial court therefore convicted all the three and sentenced them to one year's rigorous imprisonment under Section 366. On appeal this Court enhanced the sentence of all the three. It also cannot be doubted that if all the three would have preferred the appeal to the Supreme Court on the same reasoning their Lordships of the Supreme Court would have reduced the sentences of all the three persons to one year's rigorous imprisonment as awarded by the trial Court. But unfortunately, Kamalsingh and Punamchand did not prefer appeal to the Supreme Court as they were absconding as stated in this petition. It also cannot be doubted that so far as this Court is concerned the appeal having been disposed of in 1971 there is nothing pending in this Court and in substance the grant of this petition would mean a review of the judgment by this Court because on appeal by one of the persons their Lordships of the Supreme Court did not maintain the judgment of this Court. But unfortunately, there is no provision in the Code of Criminal Procedure which confers this jurisdiction on this Court to review its judgment under these circumstances.
7. The learned Advocate General submitted that the only course open is under Section 432 of the Cr. P.C. and admittedly under Section 432 the jurisdiction could be exercised by the state Government. It is also clear that if Kamalsingh or the petitioner had submitted an application under Article 136 of the Constitution to the Supreme Court their Lordships could have granted leave by condoning delay. But that has not been done. The learned Advocate General therefore contended that under Section 432 of the Code, Sub-section (2), even when an application is submitted to the State Govt., the Government may require the opinion of the Presiding Judge of the court who had passed the conviction and sentence; and according to him, therefore if this petition had been sent to the State Government, they would have sought the opinion of this Court on the question and passed suitable orders after getting the opinion of this Court. He therefore contended that under these circumstances this Court can after recording its opinion send the matter to the State Government for appropriate action. He also placed the decisions reported in Kale v. King Emperor AIR 1923 All 473 (2) : 24 Cri LJ 766 and Nawab v. Emperor AIR 1932 Lah 308 : 33 Cri LJ 580.
7A. In AIR 1932 Lah 308 : 33 Cri LJ 580 (supra) their Lordships after considering the special facts of that particular case although maintained the conviction under Section 302, I.P.C. and sentence of imprisonment for life but observed:
So far as the sentence awarded is concerned, it was not open to the court below to pass any sentence other than that awarded by it, when it held that the offence of the appellant amounted to murder, and in view of the opinion expressed above by me, it is equally impossible for this Court to pass any other sentence. It is true however that the accused is a youth of tender age, even if the age judged by the court below from his appearance is correct and was naturally provoked by the outrageous conduct of the deceased in having sexual inter-course with a female relative of his in an open and bare faced manner some three days before the occurrence. I would therefore, make a recommendation to the local Government for a consideration of the sentence under Section 401, Criminal P. C. and would dismiss this appeal. In AIR 1923 All 473 (2) : 24 Cri LJ 766 (supra) considering the question of sentence where the conviction of a person whose conviction was maintained, was doubted it was observed:
This is an application from the Sessions Judge of Meerut requesting me to set aside a conviction passed by his predecessor and affirmed by Pigot J. in appeal on the ground that on certain material that have since come to the knowledge of the District Magistrate there is a doubt of the convict's guilt. This is not a matter which I can possibly take up in revision. Even if I myself had passed the order dismissing the appeal I could not revise it and I certainly cannot revise the order of another Judge of this Court. There can be no revision in the matter.
I return the record to the District Magistrate in order that he may refer the matter to the local Government who have power under Chap. XXIV of the Code of Criminal Procedure.
Learned Advocate General therefore contended that the only thing that could be done in this petition is that if this Court feels satisfied it should express its opinion on the question of sentence and send it to the State Government for consideration.
8. Apparently, this Court could exercise no jurisdiction and the only course open to the petitioner is to approach the State Government under Section 432 of the Cr. P.C. and the State Government in the peculiar circumstances of the case may consider reduction of sentence or may remit the sentence passed against Kamalsingh. But it is also clear that under Sub-section (2) of Section 432 the State Government on receipt of such petition may require the presiding Judge of the court who had maintained the conviction and sentence to give his opinion with reasons so that the State Government may exercise jurisdiction under Section 432 and pass suitable orders. Section 432(2) of the Code reads:
432. (2) Whenever an application is made to the appropriate Government for the suspension or remission of a sentence, the appropriate Government may require the presiding Judge of the court before or by which the conviction was had or confirmed, to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion certified copy of the record of the trial or of such record thereof as exists.
Apparently therefore what this Court can do is only to express its opinion on the question of sentence as indicated in Sub-section (2) of Section 432 quoted above and this expression of opinion is expected when a reference is made by the Government on an application submitted to it. But it appears that in the present case Kamalsingh is in detention in Thana prison not within the jurisdiction of this Court and his wife has submitted this petition to this Court which has been placed before me. Technically this petition should have been sent to the Government. But learned Advocate General suggested that even if this application has not been presented to the State Government, but as it has come to this Court it would be just and proper in the circumstances of the case to express the opinion as regards sentence and send the matter to the State Government for exercise of jurisdiction under Section 432 of the Code.
9. The circumstances of the case are rather peculiar; but it is clear that Kamalsingh for whom this petition has been filed was convicted along with two others by the Sessions Court under Section 366, I.P.C. and sentenced to one year's rigorous imprisonment. All the three convicted persons preferred an appeal to this Court and this Court in criminal appeal No. 391 of 1969 by the judgment dated 25-1-1971 enhanced the sentence maintaining the conviction of the three persons under Section 366, I.P.C. One of the them went up to the Supreme Court and preferred an appeal after grant of leave under Article 136 of the Constitution and their Lordships of the Supreme Court set aside the judgment of this Court with regard to enhancement and maintained the sentence awarded by the trial court. It therefore cannot be doubted that if this Kamalsingh or the other person had also joined Shivgovind in his appeal to the Supreme Court their sentence would have also been reduced as the case of all the three persons stood exactly on the same footing and no distinction could be drawn. But it appears, unfortunately, this person Kamalsingh and the other remained absconding and did not join Shivgovind in his appeal to the Supreme Court and now, long after, this Kamalsingh has been arrested and is undergoing sentence, which is the sentence of seven years' rigorous imprisonment although for the same offence under identical circumstances Shivgovind has been let off after serving only the sentence of one year; and looking to the matter from this point of view it appears just and proper that the question of remission of sentence of this person Kamalsingh does deserve to be considered in the light of these facts.
10. Apparently, the wife of Kamalsingh who has suubmitted this petition to this Court has technically committed an error. This petition should have been addressed to the State Government and then the State Government may have sought the opinion of this Court on this petition. But as learned Advocate General pointed out merely on this technical difficulty the prayer of this unfortunate person should not be rejected as apparently as stated above the sentence of this person Kamalsingh deserves to be considered in the light of the peculiar facts of this case as discussed above.
11. Consequently, it is directed that copy of this order along with the copy of the petition submitted by the wife of Kamalsingh and copy of the record as required by Section 432(2) of the Cr. P.C. be sent to the State Government for necessary action under Section 432 of the Code. This petition indicates that Kamalsingh is under detention in Thana Central Prison in the State of Maharashtra. He also be informed of the order.