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TMI Blog1955 (3) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... ment till the rising of the Court and to pay a fine of ₹ 250 or to undergo rigorous imprisonment for one month. The appellant preferred an appeal to the High Court of Judicature at Bombay but his appeal was summarily dismissed by a Bench of that Court on the 19th January 1953. After the dismissal of that appeal the State of Bombay made a Criminal Revision application to the High Court for enhancement of the sentence. Notice having been issued to the appellant under section 439(2) of the Code of Criminal Procedure, learned counsel for the appellant claimed the appellant's right under section 439(6) to show cause against his conviction. This the High Court did not permit him to do. The High Court, however, did not think fit to make any order for enhancement of sentence. On an application made on behalf of the appellant the High Court of Bombay has given leave to the appellant to appeal to this Court and granted a certificate of fitness under article 134(1) (c) of the Constitution of India. The question for our consideration in this appeal is whether the summary dismissal of the appeal preferred by the appellant precluded him from taking advantage of the provisions of sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Section 407 of the Code of Criminal Procedure, 1861 prohibited any appeal from acquittal. Express power was given to the appellate Court to reduce the sentence (sections 425 and 426) and like power was given to the Sudder Court as a Court of revision (sections 405 and 406). I find no provision in that Code authorising the Sudder Court to enhance the sentence. The Code of Criminal Procedure of 1872, however, by section 272 permitted the Government to file an appeal from acquittal. This was repeated in section 417 of the Code of 1882 which corresponds to section 417 of the present Code. Section 280 of the Code of 1872 expressly authorised all appellate Courts to enhance the sentence. This power of enhancement, however, was taken away from the appellate Courts by section 423 of the Code of 1882 now reproduced in section 423 of the present Code and was vested in the High Court under section 439 of the Code of 1882 to be applied in exercise of its revisional power. This has been continued in our present section 439. This shows that the Legislature thought that this extraordinary power should be exercised only by the High Court and no other Court. A practice, how- ever, appears to have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue under sub-section (2) to the accused person to show cause and whenever such notice is issued the accused person must, under sub-section (6), be given an opportunity, in showing cause against enhancement, also to show cause against his conviction. The sub-section does not say that he will have this right to show cause against his conviction only if he has not already done so. If the accused person appealed against his conviction and sentence to an appellate Court not being a High Court and lost that appeal after a full hearing in the -presence of his opponent it must be conceded that he has had an opportunity to show cause against his conviction but nobody will contend that that circumstance will prevent him from having another opportunity of showing cause against his conviction and sentence either by a substantive application initiated by himself under sub-section (1) or by way of defending himself when the State or other interested person applies to the High Court in revision under section 439(1) for enhancement of sentence and a notice is issued on him under section 439(2). (See Kala v. Emperor(1)). Enhancement of sentence is undoubtedly an encroachment upon the liberty of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... showing cause against his conviction under sub-section (6) is tanta- mount to an application in revision initiated by him and such application is saved from the operation of sub-section (5) by the non obstante clause of sub-section (6) 1 do not see any reason for holding that the non obstante clause of sub-section (6) is concerned only with sub-section (5). Although in showing cause against his conviction under sub- section (6) the accused person can urge all that he could do in an appeal, if not more, this act of showing cause is, nevertheless, in form at least, a continuation and indeed an integral part of the proceedings in revision initiated by the Court suo motu or by the State or any other interested party. The general rule is that the exercise of revisional power is entirely a matter of discretion which is to be exercised by the High Court not capriciously but on sound judicial principles. Indeed, sub-section (1) itself lays stress on this aspect of the matter by the use therein of the words in its discretion . The non obstante clause may well have been designed to emphasise that the new right conferred by sub-section (6) is a matter of right and does not rest entirely on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce enhanced, a second opportunity to do what he had previously failed to do. In other words, I see no incongruity in the Legislature giving a new right of revision to the accused person as a weapon of defence in the context of a new offensive taken by the State against him. Even if the act of showing cause under sub-section (6) is to be regarded as a revision, there was nothing to prevent the Legislature, in the interest of the liberty of the subject, to provide for a limited right of revision of the judgment or decision or order of the High Court itself. In my judgment that is what the Legislature has done by adding sub-section (6) to section 439 and the non- obstante clause is intended to meet and repel the objection that may possibly have been taken on the score that, under sub- section (1), there can be no revision by the High Court of its own order. In my opinion, so long as proceedings may be taken against the accused person for enhancement of his sentence and so long as notice may be issued on him to show cause against enhancement, so long must he have, in showing cause against enhancement of sentence, the right, under sub- section (6), to show cause against his conviction, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Emperor v. Naubat(4) ), to cases where the jail appeal of the accused had previously been dismissed summarily without hearing the accused or his advocate (see Emperor v. Koya Partab(5), Emperor v. Abdul Qayum(6), Ramchand v. Hiralal(7) and State v. Bhavani Shankar(8)) and to cases of dismissal of revision petition filed by the accused after hearing the advocate (see In re Saiyed Anif Sahib(1), Emperor v. Sher Singh( ), Crown v. Dhanna Lal (supra) ) and also to the case of an accused whose revision petition has been summarily dismissed (see Emperor v.. Inderchand (supra)). It has been held that for the purposes of section 439(6) it makes no difference whether the judgment or order of dismissal was made by the High Court in appeal or in revision, or whether the appeal or revision was dismissed summarily or after a full hearing on notice to the State or other interested party and that any dismissal of the appeal or (1) [1931] I.L.R. 10 Pat. 872.(6) A.I.R. 1933 All. 485. (2) A.I.R. 1927 Bom. 666.(7) A.I.R. 1942 All. 339. (3) A.I.R. 1936 Sind 233.(8) I.L.R. [1952] 2 Raj. 716. (4) I.L.R [1945] All. 527. (9) A.I.A. 1925 Mad. 993. (5) [1930] I.L.R. 54 Bom. 822.(10) [1927] I.L.R. 8 Lah. 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court to reconsider the decision of another Judge of that Court. It is necessary to examine these grounds a little closely to ascertain their validity. In order to appreciate the true meaning and exact scope of sections 369 and 430 on which the argument of finality of judgment is founded it is necessary to keep in view the general scheme of the Code. Part VI of the Code deals with Proceedings in Prosecutions . Chapter XV lays down the jurisdiction of the Criminal Courts in Inquiries and Trials. I pass over Chapters XVI to XVIII. Chapter XIX prescribes rules for the framing and joinder of charges. Chapters XX to XXIII deal with different kinds of trials, e.g., trial of summons cases, warrant cases, summary trials and trials before High Courts and Courts of Session. Chapter XXIV contains general provisions as to Inquiries and Trials. Mode of taking and recording evidence is prescribed by the sections grouped together in Chapter XXV. then comes Chapter XXVI which is headed Of the Judgment . Section 369 is one of the sections included in this chapter. Chapter XXVII provides for the submission of death sentences for the confirmation of the High Court. Rules relating to the execution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cludes section 369, applicable to the judgment of any appellate Court other than High Court, nor for again prescribing by section 430 a rule of finality for judgments and orders passed by an appellate Court. It, therefore, follows that while, subject to the other provisions of the Code or any other law and of the Letters Patent, the finality of section 369 attaches to the judgments pronounced by all trial Courts including the High Court in the exercise of its original criminal jurisdiction it certainly has no bearing on the question of finality of appellate judgments which is specifically provided by section 430 of the Code. Again, the rule of finality embodied in section 369 cannot, in terms, apply to the orders made by the High Court in exercise of its revisional jurisdiction, for section 442 of the Code which requires the result of the revision proceedings to be certified to the Court by which the finding, sentence or order revised was recorded or passed refers to it as its decision or order and not judgment . It is significant that section 425 which requires the result of appeal to be certified to the lower Court refers to it as its judgment or order . All these considerati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the appellate judgments or orders of the High Court cannot, under section 439(1), be made the subject-matter of any revision application, such appellate judgments or orders did not fall within the exception made in section 430 and were accordingly left subject to the rule of finality embodied therein. Two answers occur to me. If the effect of the new subsection (6), as I have already explained, is to confer a new right on an accused person notwithstanding anything contained in section 439(1), that is to say, if sub-section (6) is read, as I think it should be, as a statutory provision expressly making the judgment or decision or order of the High Court passed in exercise of its appellate or revisional jurisdiction subject, for the purpose of the protection of an accused person whose appeal or revision had been previously dismissed, to re-examination by the High Court only as and when he is subsequently faced with an application for enhancement of sentence, then such judgment, decision or order of the High Court does, as a result of section 439(6), become the subject-matter of a case provided for in Chapter XXXII of the Code. In other words, the scope of Chapter XXXII having been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench in exercise of another jurisdiction or power. I see no reason why section 439(6) may not be read as a provision which, by necessary implication, enables the High Court to re-examine its own previous order on the happening of certain contingencies, namely, upon the accused person, whose appeal or revision has been dismissed, being faced with the risk of having his sentence enhanced and a notice being issued to him for enhancement. To reinforce the argument that section 439(6) is controlled by sections 369 and 430 reference has been made to section 423(2) and it has been contended, on the authority of various decisions, that the right given by section 439(6) is not absolute but is controlled by the provisions of section 423(2) which lay down some limitations in the matter of appeal from convictions in a jury trial. Even on that topic some learned Judges have taken divergent views. It is not necessary, on this occasion, to express any opinion on that question and I reserve my right to examine the position as and when an occasion may arise in future. Even if section 439(6) is controlled by section 423(2), that circumstance certainly does not indicate when and under what circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under did not amount to a review of an order of dismissal under section 435; and finally that if the order under section 435 was a judgment or if an order of acquittal under section 439(6) was a review of such judgment, such review was not barred by section 369, because of the saving provisions with which the section begins. Mahajan, J., as he then was, put in the forefront of his judgment the view that section 439(6) which was introduced by amendment in 1923 gave a new and unlimited right to the subject; that the Judge hearing the application for enhancement was bound to go into the facts to satisfy himself as to the correctness of the conviction; that the exercise of revisional jurisdiction was a mere matter of favour and a dismissal in limine of such application amounted only to a refusal to look into the record and was in no sense a judgment. Ram Lall, J., did not deliver any separate judgment but concurred generally with the other learned Judges. It will be noticed that this decision of the Lahore High Court rests mainly on two grounds, namely, (1) that in a dismissal of a revision application in limine there is no finding or decision at all and that it is nothing more than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appeal or revision filed by the accused. In my judgment there is a substantial distinction between these two kinds of dis- missals as regards their effect on the rights of accused persons as I shall presently indicate. I am, however, unable to accept the argument adopted by the Lahore Full Bench that a summary dismissal of a revision application filed by the accused must be regarded as an order made under section 435 and not one under section 439, that such a summary dismissal is nothing more than a refusal on the part of the High Court to go further or to look into the application and that in such a dismissal there is no finding or decision at all. Far less am I able to accede to the proposition that a summary dismissal of a jail appeal also stands on the same footing. Sections 421, 435 and 439 undoubtedly vest a very wide discretion in the Court. Discretion, as Lord Halsbury, L.C., said, in Sharp v. Wakefield(1), means sound discretion guided by law. It must be governed by rules of reason and justice and not according to private opinion; according to law and not by humour or caprice. It must not be arbitrary, vague and fanciful but must be legal and regular. This discr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal or revision is summarily dismissed by the High Court there is, in such a dismissal, no finding or decision which can replace the judgment of the lower Court. it is, therefore, said that there can be no showing cause against his conviction under sub-section (6) in the first case, for it will involve a revision of the High Court's decision but the position will be otherwise in the second case where the dismissal was summary. This argument appears to me to be untenable and fallacious. Section 425 of the Code requires that whenever a case is decided on appeal by the High Court under Chapter XXXI it must certify its judgment or order to the Court by which the finding, sentence or order appealed against was recorded or passed and that that Court shall thereupon make such orders as are conformable to the judgment or order of the High Court and that,, if necessary, the record shall be amended in accordance therewith. Likewise, section 442 requires that when a case is revised under Chapter XXXII by the High Court, it shall, in the manner provided by section 425, certify its decision or order to the Court by which the finding, sentence or order revised was recorded or passed and tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of enhancement of the sentence. At that stage no notice or rule having been issued the respondent is not before the Court to raise the issue of enhancement. So the summary dismissal only confirms the conviction and decides that the Court sees no ground for reducing the sentence. It is in no sense a decision that the sentence should not be enhanced for that issue was not before the Court at all and so it has been said, I think rightly, in several cases, [e.g. In re Syed Anif Sahib (supra)], Emperor v. Jorabhai (supra) and Emperor v. Inderchand (supra)]. The fact the High Court simply dismisses the appeal or revision summarily without issuing the notice on the accused under section 439(2) for showing cause against enhancement is a clear indication that the High Court has not considered the question of enhancement. It is true that the rule of finality prescribed by section 430 applies to the appellate judgment of the High Court, subject to the exception regarding cases falling within Chapter XXXII. It is also true that although the revisional power is not expressly or in terms controlled either by section 369 or section 430, the general principle of finality of judgments attaches to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on making successive appeals or revision applications which obviously he cannot be permitted to do. But the State or other interested person who has not been served with any notice of the appeal or revision cannot be precluded, by the summary dismissal of the accused's appeal or revision, from asking for enhancement, for in that situation the State or the complainant not being present the question of enhancement was not in issue before the Court and the summary dismissal cannot be regarded as an adjudication on the question of enhancement. That question not having been put in issue and not having been decided by the High Court, the finality attaching to the summary dismissal as against the accused does not affect the position. This, I apprehend, is the true distinction between a summary dismissal of an appeal or revision and a dismissal of it after a full bearing. The cases of Emperor v. Jorabhai (supra) and the other cases following it overlooked this vital distinction as also its effect on the new statutory right conferred on the accused person by section 439(6) and they cannot be accepted as correct decisions. In those cases where the appeal or revision filed by the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce, the accused person could again show cause against his conviction. With great respect I think that the better reasoning would have been to say that such a dismissal of the revision after a full hearing, was a judgment final against both parties on both points of conviction and sentence and that as the State did not, during the pendency of that revision, apply for revision it had., after that dismissal which became a final judgment, no right subsequently to apply for enhancement of sentence and consequently no notice under section 439(2) could issue and no question could arise for the accused person asserting his right under section 439(6). For reasons discussed above I have to hold that the summary dismissal of the appeal filed by the appellant in the High Court was a judgment of conviction by the High Court and was final so far as the appellant was concerned and he could not initiate any further revision application either against his conviction or for reduction of sentence after that dismissal but that it was not final so far as the State was concerned and the State was entitled to apply in revision for enhancement of sentence. For reasons already stated I must further hold t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he High Court after hearing the advocate on the 19th January 1953. On the 18th May 1953 a criminal revision application for enhancement of sentence was filed by the State and a rule was granted by the Vaca- tion Judge on the 12th June 1953. This rule came for hearing and final disposal before a Division Bench of the High Court on the 26th August 1953. After hearing the Government Pleader in support of the rule the Court was not satisfied that there was a case for enhancement of sentence. The learned counsel for the Appellant then wanted to argue for an acquittal relying upon the provisions of section 439(6) of the Criminal Procedure Code. Relying however upon the decisions of the Bombay High Court in Emperor v. Jorabhai(1), and Emperor v. Koya Partab (2) , as also Emperor v. Inderchand(3), the Court did not allow the learned counsel to argue that the order of conviction itself could not be sustained. The application for enhancement of sentence was thereupon dismissed and the rule was discharged. The appellant applied for leave to appeal to this Court on the 15th October 1953. The Division Bench of the High Court, hearing the application stated the point which arose for determinatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pose being that in an appeal from a conviction the Appellate Court might with or without the reduction in sentence and with or without altering the finding alter the nature of the sentence but.............................. not so as to enhance the same. Section 430 incorporates the rule as to the finality of the Judgments and orders passed by an Appellate Court upon appeal except in cases provided for in section 417 which relates to appeals on behalf of the Government in cases of acquittal and Chapter XXXII which relates to reference and revision. Section 435 deals with the exercise of the revisional powers inter alia by the High Court to call for the records of the inferior criminal courts 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 Courts. Section 438 provides for a reference by the lower Appellate Court to the High Court recommending that a sentence which has been imposed on a convicted person be reversed or altered. Section 439 with which we are immediately concerned is couched in the following terms:- (1)In the case of any proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here would be a full hearing of the appeal in the presence of both the parties. In the case of an application for revision also the same may be dismissed summarily and without even hearing the party personally or by pleader. If however the Court deems fit to issue notice to the opposite party there would be a full hearing in the presence of both the parties. These proceedings would normally be concerned with the question whether the conviction can be sustained and the sentence passed upon the convicted person be set aside or reduced. There would be no question here of the enhancement of the sentence. The question of enhancement of the sentence would only arise when the High Court in exercise of its revisional jurisdiction. under section 439(1) thought it necessary to issue a notice for enhancement of sentence to the convicted person. Even though the Court exercising its powers of revision would not be bound to bear any party personally or by pleader no order under section 439(1) enhancing the sentence could be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence. In that event simultaneously with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to and the Lahore High Court in Emperor v. Dhanalal(2) also followed the same. But this decision of the Lahore High Court was overruled by a Special Bench of that Court in Emperor v. Atta (1) [1945] 48 Bombay L.R. 41 (F.B.). Mohammad(1). The Special Bench held that the exercise of revisional jurisdiction by the High Court is entirely discretionary, that an application for revision is entertained as a matter of favour, that no party is entitled to be beard either himself or by pleader when the Court in, Exercising its revisional jurisdiction and that therefore a dismissal of an application for revision in limine tantamounts to a refusal by the Court to exercise its revisional jurisdiction and the convicted person under those circumstances is at all events entitled while showing cause why his sentence should not be enhanced also to show cause against his conviction. It went to the length of holding that section 439(6) confers upon the convicted person an unfettered and unlimited right of showing cause against his conviction, which right cannot be taken away unless there is a judgment in rem which only would operate as a bar to the decision of the same matter when it arises in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in either case the High Court which is the highest Court of Appeal in the State would have pronounced its judgment,which judgment would replace the judgment of the lower Court and would be final. Even while exercising its revisional powers under section 439 the High Court exercises any of the powers conferred on a Court of Appeal by sections 423, 426, 427 and 428 and it is in effect an exercise of the appellate jurisdiction though exercised in the manner indicated therein. This principle of finality of criminal judgments therefore would equally apply when the High Court is exercising its revisional jurisdiction. Once such a judgment has been pronounced by the High Court either in the exercise of its appellate or its revisional jurisdiction no review or (1) 1951 S C.R. 344. revision can be entertained against that judgment and there is no provision in the Criminal Procedure Code which would enable even the High Court to review the same or to exercise revisional jurisdiction over the same. The judgment of the High Court would replace that of the lower Court which would no longer be subsisting but would be replaced by the High Court judgment and thus it is only the High Court jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the Madras High Court in Emperor v. Chinna Kaliappa Gounden and another(1), discussing the provisions of section 366 and section 367 of the Criminal Procedure Code and laying down that an order of dismissal under section 203 is not a judgment within the meaning of section 369. The principle of autrefois acquit also was held not to apply as there was no trial when the complaint was dismissed under section 203 with the result that the dismissal of a complaint under section 203 was held not to operate as a bar to the rehearing of the complaint by the same Magistrate even when such order of dismissal had not been set aside by a competent authority. Section 366 lays down what the language and contents of a judgment are to be and section 367 provides that the judgment is to contain the decision and the reasons for the decision and unless and until the judgment pronounced by the Court complied with these requirements it would not amount to a judgment and such a judgment when signed would not be liable to be altered or reviewed except to correct a clerical error by virtue of the provisions of section 369 save as therein provided. These observations of the Madras High Court were quoted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08] I.L.R 31 Madras 543. (3) [1945] 48 Bom. L.R. 41 (F.B.). due consideration of the evidence and all the arguments and would therefore be a judgment and such judgment when pronounced would replace the judgment of the lower Court, thus constituting the judgment of the High Court the only final judgment to be executed in accordance with law by the Court below. When however a petition of appeal presented by a convicted person from jail is summarily dismissed under section 421 or a revision application made by him is dismissed summarily or in liming without hearing him or his pleader what-the High Court does is to refuse to entertain the petition of appeal or the criminal revision and the order passed by the High Court - dismissed or rejected cannot be said to be the expression of the opinion of the Court arrived at after due consideration of the evidence and all the arguments. It is a refusal to admit the appeal or the criminal revision so that notice be issued to the opposite party and the matter be decided after a full hearing in the presence of both the parties. It would be only after the appeal or the criminal revision was admitted that such a notice would issue and the me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld be reduced. The setting aside of the conviction and the reduction, if any, in the sentence could only be determined by the Court after notice was issued to the opposite party and a full hearing took place in the presence of both the parties. Even in the case of a summary dismissal of a petition of appeal under these circumstances the position would certainly not be any different from that which obtains -in the. case of a summary dismissal of the petition of appeal presented by the convicted person from jail or the summary dismissal of an application for criminal revision made by him or on his behalf to the High Court. In all these cases there will be no judgment of the High Court replacing the judgment of the lower Court and the action of the High Court would only amount to a refusal by the High Court to admit the petition of appeal or the criminal revision and issue notice to the opposite party with a view to the final determination of the questions rising in the appeal or the revision. The order dismissing the appeal or criminal revision summarily or in liming would no doubt be a final order of the High Court not subject to review or revision even by the High Court itself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal jurisdiction would replace the judgment of the lower Court and there would be no occasion at all for the exercise by the High Court of its revisional powers under section 439(1) which can only be exercised qua the judgments of the lower Courts and certainly not qua its own judgments. The cases (2) (4) noted above would therefore be outside the purview of section 439(1). If that is so there would be no question accused an opportunity of being heart personally or by pleader in his defence 439(2) act the provisions of section 439(6) would certainly not come into operation at all. If no notice of enhancement of sentence could issue under these circumstances no question at all could arise of the convicted person showing cause why his sentence should not be enhanced and being entitled in showing cause also to show cause against his conviction. It follows by way of a necessary corollary that no notice for enhancement of sentence can be issued by the High Court when a judgment is pronounced by it after a full hearing in the presence of both the parties either in exercise of its appellate or its revisional jurisdiction. Such notice for enhancement of sentence can be issued by it eithe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son a right to show cause against his conviction in those cases where a notice to show cause why his sentence should not be enhanced was issued against him, whatever be the circumstances under which it might have been issued. Once you had a notice for enhancement of sentence issued against the convicted person this right of showing cause against his conviction also accrued to him and that right could be exercised by him even though he had on an earlier occasion unsuccessfully agitated the maintainability of his conviction either on appeal or in revision. This non-obstante clause could not in our opinion, override the requirements of section 439(1) which provides for the exercise of revisional powers by the High Court only qua the judgments of the lower Courts. Section 439(6) would not come into operation unless a notice for enhancement was issued under section 439(2) and a notice for enhancement of sentence under section 439(2) could not be issued unless and until the High Court thought it fit to exercise its revisional powers under section 439(1) qua the judgments of the lower Courts. The High Court has no jurisdiction to exercise any revisional powers qua its own judgments or ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into Bhairava (1), a decision given in the year 1908 which recognised the invariable practice of that Court for over 25 years according to which the accused in showing cause why the sentence should not be enhanced was not allowed to dis- cuss the evidence and satisfy the Court that he had been wrongly convicted. The practice of the Court in such cases was to accept the conviction as conclusive and to consider the question of enhancement of sentence on that basis. It was open to the accused to apply for revision of the conviction, but having failed to avail himself of that, he could not be permitted to assail the conviction in a proceeding where the sole question was whether the sentence passed by the lower Court was adequate or not. It may be (1) [1908] I.L.R. 32 Bom. 162 noted that this decision was in the year 1908 long before the amendment of section 439 of the Criminal Procedure Code by Act XVIII of 1923 by adding subsection (6) thereto. The next decision to which we were referred was Emperor v. Mangal Naran(1). In that case simultaneously with the admission of an appeal filed by the accused the Court issued a notice for enhancement of sentence. When the appeal and the notice c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l had been actually disposed of and that once the appeal was disposed of by the Court there was no legal power to enhance the sentence under section 439 of the Criminal Procedure Code. That contention was negatived the Court observing that so far as the point of procedure was concerned there was no hard and fast rule as to the appropriate time for the issue of notice of enhancement of sentence by the High Court and resorting, to the principle of the finality of judgments as regards the accused being concluded by the judgment of the High Court dismissing his appeal and confirming the sentence passed upon him. The judgment there was interpreted as confirming the conviction and rejecting the appeal as to the sentence in the sense that it saw no reason to reduce it and that was not treated as a decision that the sentence should not be enhanced if a proper procedure was taken such as the Code allowed for the purpose and therefore so far as the judgment went there was nothing which in any way tied the hands of the Court. Sections 369 and 430 of the Criminal Procedure Code were referred to and the Court held that the observations of MacLeod, C.J. in Emperor v. Mangal Naran(1) above referr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the High Court qua the judgment of the lower Court and once that judgment is replaced by the judgment of the High Court, the High Court has no further powers to review or revise its own judgment and enhance the sentence which is thus passed by it upon the accused. The principle as to the finality of judgments applied by the Court by virtue of the provisions of section 369 and section 430 of the Criminal Procedure Code should not have been confined merely to the question of confirming the conviction but also should have been extended to the confirming of the sentence in so far as the High Court did not see any reason to reduce the sentence already passed by the lower Court upon the accused. When the High Court hears the appeal on its merits it does not apply its mind only to the question whether the conviction should be confirmed but also applies its mind to the adequacy of the sentence passed upon the accused by the lower Court. In thus applying its mind to the question of sentence it also considers whether the sentence passed upon the accused by the lower Court is adequate in the sense that it is either such as should be reduced or is such as should be enhanced. The questions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liberty to differ from and the non-obstante clause in - section 439(6) did not entitle the accused to go behind section 430 and to show cause against his conviction after his appeal had been dismissed. The learned Chief Justice followed the decision in Emperor v. Jorabhai (1) and observed that the only distinction between that case and the one before him was that case had been heard on the merits and not summarily dismissed. But in his view that distinction was not one of principle. We are of the opinion that the order which had been pronounced by the Court of Appeal on the 9th June 1930 was not a judgment of the High Court which replaced that of the lower Court and (1) [1926] I.L.R. 50 Bom. 783. (2) [1930] 32 Bom. L.R. 1286. even though it might come within the description of an order within the meaning of section 430 it was not a judgment within the meaning of the term set out above and not being a judgment was no bar to the accused showing cause also against his conviction when showing cause against the notice for enhancement. The matter was one falling within the category of case No. I noted above and it was open to the accused even though his petition of appeal from jail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing that order of dismissal reviewed by the High Court that the right conferred by section 439(6) could not give an accused person a right to be heard against his conviction if such a right was in conflict with the other provisions of the Code, that under section 369 the Court had no power to alter the decision of the learned Vacation Judge dismissing the revision petition filed by the accused and that if the accused bad already unsuccessfully exercised his right of appeal or revision to the High Court he was not entitled in a subsequent application by the Government for enhancement of sentence to ask the High Court to go once more into the merits of the case and to set aside the conviction which the same Court had previously confirmed either in appeal or on a revision application. Divatia, J. was conscious of the somewhat anomalous position so far as the accused was concerned and referred to the observations of the Court in Emperor v. Babu Pandurang Mhaske(3) where it was stated and rightly that where the High Court itself wanted to enhance the sentence, in order that the accused might have the right to challenge his conviction before the same bench which was hearing either the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of section 439 would then come into operation. The High Court would be bound then under section 439(2) to give an opportunity to the accused to be heard in his defence before the sentence passed upon him by the lower Court was enhanced and the accused would under section 439(6) be entitled in showing cause against the notice of enhancement also to show cause against his conviction. This decision of the High Court therefore was incorrect and the accused ought to have been allowed in spite of the summary dismissal of his application in revision to show cause against his conviction while showing cause against the notice for enhancement. One more decision of the Bombay High Court may be referred to and that is Emperor v. Nandlal Chunilal Bodiwala(1). That was a case where the Sessions Judge of Ahmedabad had at the instance of the petitioner made a reference to the High Court recommending that the Additional Magistrate had no jurisdiction, power or authority to pass the order complained against and that the High Court should quash the same. On the reference coming before the High Court the following order was passed without issuing notice:- no order on this referen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Full Bench they observed that they were not unaware that the applicant had a grievance that his position had been worsened and not improved by the Sessions Judge being in his favour, because if the recommendation of the Sessions Judge was turned down without hearing the petitioner, as had happened in that case he was worse off, while if the Sessions Judge would have been against him he could have still applied to the High Court in revision and got an opportunity to put his case before the High Court. This was recognised no doubt as an anomaly but it was caused by the provision of rule 26 of the Appellate Side Rules of the Bombay High Court which compelled a party to apply to a lower revisional Court before applying in revision to the High Court. This disability which the petitioner suffered from was emphasised in that if the Sessions Judge had dismissed his application he could then have applied to and argued his case before the High Court, but because the Sessions Judge was in his favour and had therefore got to make a reference to the High Court recommending it to set aside the order and because the High Court was not satisfied with the reasons for the recommendation, and dispo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equently been issued to him to show cause why his sentence should not be enhanced the convict was barred from showing cause against his conviction and the fact that the previous order dismissing the revision was passed without issuing notice to the opposite party made no difference to the position. The Court also invoked the principle of the finality of judgments and further held that the words unless he had already done so though not occurring at the end of the sub-section were to be presumed to be implied from the ordinary presumption as to the finality of orders in criminal revision proceedings. In arriving at this conclusion Addison, J. observed:- In the present case there has been a judgment -of this Court on the very full revision application brought by the convict. By that judgment the petition was dismissed and the conviction confirmed. Under section 369, Criminal Procedure Code that judgment cannot be reviewed. It is a final judgment of this Court, and in my opinion the provisions of sub- (1) [1926] I.L.R. 50 Bom. 783. (2) [1928] I.L.R. 10 Lah. 241. section (6), section 439, do not give the convict another opportunity in these circumstances to be heard as re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments in the true sense of the term which debar the exercise of revisional jurisdiction by the High Court under section 439 (1) of the Criminal Procedure Code. This decision of the Lahore High Court was however overruled by a Special Bench of that Court in Emperor v. Atta Mohammad(1). A criminal revision application had been dismissed in limine and thereafter a notice for enhancement of sentence was issued by the High Court. The decision of that Court in Emperor v. Dhanalal(1) following Emperor v. Jorabhai(3) was cited as debarring the accused from showing cause against his conviction and Blacker, J. before whom the matter was argued in the first instance recommended a reference to a larger Bench and the reference came up for hearing and final disposal before a Special Bench of the Court. It was held that the accused was entitled to show cause against his conviction notwithstanding the fact that his petition for revision of the order by which he was convicted had already been dismissed in limine under section 435 of the Criminal Procedure Code. The question whether an order under section 435 was a judgment was discussed by Blacker, J. while pronouncing the judgment of the Specia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the High Court after full hearing in the presence of both the parties which only can debar the High Court from exercising its revisional jurisdiction under section 439(1). Mr. Justice Mahajan as he then was delivered a concurring judgment but went a step further and observed that the true interpretation of section 439(6) was that it gave an unlimited right to the accused to whom a notice of enhancement was issued under section 439(2) to show cause against his conviction and the Judge was bound to go into the evidence with a view to find for himself whether the conviction could be sustained. This right accrued to the convict on service of notice of enhancement of sentence and could not be negatived by anything that had preceded the issue of that notice. It was the Judge hearing the enhancement petition who-had to give an opportunity to the convict to challenge his conviction before him and to satisfy him that the conviction was unsustainable. That Judge could not substitute for his satisfaction the satisfaction of some other Judge in the matter. It was a condition precedent to the passing of a prejudicial order against an accused person that he had another opportunity of estab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s available to the Crown as well as to the accused . This reasoning again was in our opinion sound but led only to the conclusion that there was no power of re-revision in the High, Court and in that case there was no power to enhance the sentence on a separate petition made for the purpose. The learned Judge therefore ought to have held that if the order dismissing the criminal revision petition in limine tantamount to a judgment pronounced by the High Court it was not open to the High Court to issue a notice for enhancement of sentence subsequently under section 439(1) of the Criminal Procedure Code. 'Having held however that the order dismissing the criminal revision application in limine was merely an order and not a judgment pronounced by the High Court and also having held that the High Court was entitled to issue a notice for enhancement of sentence under section 439(1), under those circumstances the only logical conclusion to which the Court could come was that under section 439 (6) the accused while showing cause against the enhancement of sentence was entitled also to show cause against his conviction. Mr. Justice Mahajan confined his decision only to the case of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he judgment of the High Court replaced that of the lower Court and the High Court had thereafter no power to issue a notice of enhancement of sentence purporting to exercise the revisional powers vested in it under section 439 (1) of the Criminal Procedure Code which could be exercised only qua the judgments of the lower Courts and not its own judgments. The Allahabad High Court also in Emperor v. Naubat(1) followed the decisions of that Court which had approved of and followed Emperor v. Jorabhai(2) and -repelled the contention which had been urged on behalf of the accused that the application in revision filed by the Government for enhancement of their sentence was incompetent, because their appeal from their convictions had been dismissed by the Court and it was not open to them again to show cause against their convictions. The decisions above referred to were held by the Court to be an authority for the proposition that the Court could under the circumstances proceed to consider whether the sentence imposed upon the accused should be enhanced, even though it was not open to the accused to show cause against their conviction. This decision was in our opinion not correct for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or even a reference made by the lower Court was made dismissing the same summarily or in limine without issuing notice to the opposite party or the parties concerned it would tanta- (1) I.L.R. [1952] 2 Rajasthan 716. mount to the High Court not entertaining any of these proceedings on the ground that no prima facie case had been made out for the interference of the Court. If such a prima facie case had been made out the High Court would admit the appeal or the revision application or entertain the reference and hear the matter fully in the presence of both the parties, ultimately pronouncing its judgment which would take the place of the judgment of the lower Court which would certainly not be subject to the exercise of revisional jurisdiction under section 439 (1) of the Criminal Procedure Code. We are of the opinion that the conclusion reached by the High Court of Rajasthan was correct and the accused in that case was rightly allowed by it to show cause against his conviction in spite of his petition of appeal from jail having been dismissed by it summarily, though we differ from the reasoning adopted by the Court in reaching that con- clusion. Section 439(6) gives the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by having resort to the provisions of either section 369 or section 430 of the Criminal Procedure Code. Section 369 in terms provides, save as otherwise provided in this Code and section 439(6) would be an otherwise provision which is saved by this non-obstante clause appearing in section 369. It is significant to note that both these amendments, the one in section 369 and the other in section 439 were enacted by section 119 of Act XVIII of 1923 and the very purpose of these simultaneous amendments would appear to be to effectuate the right given to the accused to show cause against his conviction as enacted in section 439(6) of the Criminal Procedure Code. It may also be noted that the right which is thus conferred on the accused under section 439(6) is not ,an unlimited or unfettered right as observed by Mr. Justice Mahajan in Emperor v. Atta Mohammad(1). (1) [1943] I.L R. 25 Lah. 391 (F.B.). In the case of trials by jury where an accused person has been convicted on the verdict of a jury and is called upon under section 439(2) of the Criminal Procedure Code to show cause why his sentence should not be enhanced he is entitled under section 439(6) to show cause against ..... X X X X Extracts X X X X X X X X Extracts X X X X
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