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TMI Blog1955 (12) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... hers in possession of gaming instruments All of them were prosecuted under section 5 of the Bombay Prevention of Gambling Act (Bombay Act IV of 1887), hereinafter referred to as the Act, for being present in a gaming house for the purposes of gaming, and the first appellant was, in addition, charged under section 4(a) of the Act for keeping a gaming house. The Presidency Magistrate who tried the case, found the first appellant guilty under section 4(a) of the Act, and sentenced him to three months' rigorous imprisonment. He also found him guilty under section 5 of the Act, but awarded no separate sentence under that section. The second appellant was found guilty under section 5, and sentenced to three months' rigorous imprisonment. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sentence with or without either reducing the sentence or altering the finding, but, subject to section 106(3), not so as to enhance the same. It is urged that the present case does not fall within any of the four categories mentioned above as the conviction under section 5 has been affirmed, and no question of reduction or alteration of sentence arises, as none had been imposed under that section by the Magistrate, and that accordingly the order of the High Court could not be justified under any of the provisions of the Code. It is further contended that the award of sentence under section 5 amounted in the above circumstances to an enhancement, and was, in consequence, illegal, as no notice had been issued therefor'. as required by l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... teration of the conviction under sections 363 and 498 to one under section 498. This view proceeds, in our opinion, on a misconception of the true meaning of the words alter the finding in section 423(1)(b) of the Code of Criminal Procedure. When a statute enacts provisions creating specific offences, in law these offences constitute distinct matters with distinct incidents. Under section 233 of the Code of Criminal Procedure, they have to be separately charged, and under section 367, the judgment has to specify the offence of which and the law under which the accused is convicted. When there is a conviction for more offences than one, there are distinct findings in respect of each of them, and when section 423 (1) (b) speaks of a finding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a clear distinction between a reversal of a finding and its alteration, and provides that when there is a reversal, the order to be passed is, one of acquittal, discharge or retrial, whereas when there is an alteration, the order to be passed is one of maintaining, reducing or altering the sentence. But here, the order passed by the High Court is not one of alteration of any finding. It is, as already stated, a reversal of the finding under section 4(a) and a confirmation of the conviction under section 5. We are therefore of opinion that on the language of the section, the imposition of a sentence under section 5 by the High Court cannot be justified. The question still remains whether apart from section 423(1) (b), the High Court has th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uential or incidental order that may be just or proper . When a conviction is affirmed in appeal but no sentence had been awarded by the trial Magistrate., the award of a sentence is consequential on and incidental to the affirmance of the conviction, and it is a just and proper order to be passed under the law. We are unable to agree with the view expressed in Ibrahim v. Emperor (A.I.R. 1940 Bom. 129) that such an order could be an enhancement of the sentence. Before a sentence can be said to be enhanced, there must be one which could be enhanced, and when no sentence was imposed on a conviction by the trial Magistrate and one is for the first time awarded in appeal, it cannot correctly be said to be an enhancement. We are accordingly of o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, the punishment shall not be less than three months' imprisonment and ₹ 200 fine , if be had been convicted for the same offence previously. The first appellant had a previous conviction, and the sentence of imprisonment is the minimum which could be passed against him under section 5. With reference to this aspect of the matter, the High Court observes: In view of the fact that the first accused admits one previous conviction under section 5 of the Act, the sentence of three months' rigorous imprisonment passed upon him by the learned Presidency Magistrate is justified . Now, the question is whether, in the circumstances, the order of the High Court could be held to be bad for want of notice under section 439(2). Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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