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PETITIONER: SHANKAR KERBA JADHAV & ORS.

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT: 08/09/1969

BENCH: MITTER, G.K. BENCH: MITTER, G.K. SIKRI, S.M. REDDY, P. JAGANMOHAN

CITATION:  1971 AIR  840            1970 SCR  (2) 227  1969 SCC  (2) 793  CITATOR INFO :  RF         1979 SC 745  (72)  R          1980 SC 962  (111)

ACT: Code   of   Criminal   Procedure,   ss.   417   and   423(1) (a)--Magistrate    convicting    accused--Sessions     Judge acquitting them--Appeal to  High Court by State under s. 417 of  Code--Powers of High Court in respect    sentence to  be passed by it if it reverses order of acquittal--Can pass any sentence  which  magistrate  himself  could  have  passed--- Powers  not  limited  to  the  sentence  which  trial  court actually passed.

HEADNOTE: The  appellants were charged with offences punishable  under s.  147,  447 and 325  read with s.  149   of   the   Indian Penal   Code  in connection with an incident in  which  they were  alleged  to have  committed house  trespass  into  the compound of a school and injured a teacher.  The  Magistrate convicted  them  and  sentenced them on  various  counts  to imprisonment  and  fine.  The. sentences  and   fines   were lower   than  the maximum that the Magistrate was  empowered to  impose under the Code of Criminal Procedure.  In  appeal the  Sessions  Judge acquitted the  appellants.   The  State appealed  to the High Court under s. 417 Cr. P.C.  The  High Court  reversed  the  orders  of  the  Sessions  Judge  and, considering  the  nature  of  the  acts  committed  by   the appellants  imposed higher sentences and fines on  them  but they  were  still  not  higher  than  what  the   Magistrate could .himself have imposed. In appeal to this Court against the   High Court’s judgment it was contended that, the  High COurt   acting   under  s. 423(1) (a) is  not  empowered  to impose higher sentences than the lower court had passed  and in  any  case  not without a notice to  show  cause  against enhancement.     It  was  also urged that the High Court could  under  s. 423(1)  (a) pass a sentence "according to law" and  thus  it did  not  enjoy  the powers which it  otherwise  might  have exercised  under  s. 31(1) of the Code under  which  a  High Court may pass "any sentence authorised by law".

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   HELD:  (i) The difference in the wording of s. 31 ( 1  ) and  s.]23  (  1  )  (a) is a  matter  of  no  moment.   The expression ’authorised by law means sanctioned by law  while ’according  to  law’  means in  conformity  with  law.   The question to be answered in either case remains the same i.e. what is the. sentence the High Court is empowered to  impose after  it sets aside an order of acquittal when the same  is preceded by a sentence of an inferior court. [232 H]     (ii)  An appeal is a creature of statute and  the  power and   jurisdiction   of   the  appellate   court   must   be circumscribed by the words of the statute. At the same  time a  court  of  appeal is a ’court of error’  and  its  normal function  is  to  correct  the  decision  appealed  from  if necessary, and its jurisdiction should be co-extensive  with that  of  the trial court.  It cannot and ought  not  to  do some.thing  which the trial court was not competent  to  do. There  does. not seem to. be any fetter on its power to  do. what  the  trial  court could do.  In this  case  the  trial Magistrate was competent to pass a sentence of  imprisonment up  to two. years and the High Court’s jurisdiction  hearing an  appeal would therefore  be  limited to a sentence up  to that period, and no more. [233 B] 228 (iii)  Although  the Sessions Judge, in hearing  the  appeal against  the  appellants’ conviction could not  enhance  the sentence the High Court in hearing appeal against the  order of  acquittal by the Sessions Judge could do so.   When  the order  of the Magistrate was set aside by the Sessions Judge the matter became one at large and the High Court hearing an appeal therefrom was empowered under s. 423(1) (a) to pass a sentence  according  to law.  It could  therefore  pass  any sentence which the Magistrate trying the case was  empowered to  pass  and  the High Court in the present  case  did  not exceed that limit. [238 A--C] The.  acceptance of the appellant’s  contention  would  lead to   the strange result that in an appeal against  acquittal by  the  Magistrate the High Court could pass  any  sentence which  the Magistrate was empowered to do but in  an  appeal against  a  judgment of a Sessions Judge  setting.  aside  a conviction by the Magistrate the High Court’s power would be limited  to restoring the sentence which the Magistrate  had actually passed.  Further the Sessions Judge would have been entitled  to recommend enhancement of sentence to  the  High Court  if  he had maintained the conviction.  And  the  High Court could suo motu  have issued  notice  for  enhancement. But  on  the  appellant’s   contention  finality   would  be attached   to   the  sentence  given  by   the   Magistrate. Such  .could  not be attached to the sentence given  by  the Magistrate.  Such could not be the scheme of the Code.  [238 C  E] (iv) When the accused is given notice of appeal under s. 417 and  actually  takes  part in the hearing  before  the  High Court,  it would be superfluous to give him notice  to  show cause  why  a sentence within the competence  of  the  trial Magistrate should not be passed.  The accused knows or ought to  know  that  the High Court was bound  to  form  its  own conclusions  on the material before it and award a  sentence which  the merits of the case demanded within the  limit  of the trial court’s jurisdiction.  The absence of a show cause notice  does  not  violate any known  principle  of  natural justice. [238 F--G] On the above findings the ’appeal must be dismissed.     In  re:  Ramaswami  Chetty & Anr.  [1902]  2  Weir  487, Muthiah  v. Emperor, 29 Madras 190, Sita Ram v. Emperor,  11 Indian  Cases 788. Mahmudi Sheik v. Aji Sheik,  21  Calcutta

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48,  Parameswara  Pillay v. Emperor, 30 Mad.  48,  Maung  E. Maung  v.  The King, A.I.R. 1940 Rang. 118, Emperor  v.  Md. Yakub  Ali.  45 Allahabad 594, Lakshminarayana  v.  Apparao, A.I.R. 1950 A,P. 530, Emperor v.Abbas Ali, A.I.R. 1935  Nag. 139, Public Prosecutor v. Annamalai, A.I.R. 1955  Mad.  608, In   the Tirumal Raju, A.I.R. 1947 Mad. 368,  Jagat  Bahadur Singh  v.  State  of Madhya Pradesh, [1966]2 S.C.R. 822  and Emperor v. Abasali Yusufalli, 39 Calcutta 157, referred to.

JUDGMENT: CRIMlNAL  APPELLATE JURISDICTION: Criminal Appeal No. 79  of 1969.     Appeal  by  special leave from the  judgment  and  order dated  November  21,  1968 of the   Bombay  High  Court   in Criminal Appeal No. 818 of 1967. R.V. Pillai and Subodh Markandey, for the appellants.     H.R.  Khanna,  B.D.  Sharma  for  S.P.  Nayar,  for  the respondent dent. 229 The Judgment of the Court was delivered by     Mitter,  J.   The  six appellants in  this  appeal  were charge  sheeted  for having  committed  offences  punishable under  ss. 147, 447 and 325 read with s. 149 of  the  Indian Penal  Code in the court of the Judicial  Magistrate,  First Class,  Deglur,  District Nanded.  Considering the  evidence on record the Magistrate held that the accused were  members of an unlawful assembly on September 27, 1965 at the village school  Chotwadi with the common object of causing  injuries to  the  complainant.  He also found that  the  accused  had committed house trespass into the compound of the school and actually  caused grievous hurt to the complainant, a  school teacher,  in  pursuance  of the common   object   of   their unlawful  assembly.  He convicted the ’accused for  offences under  ss.  147,  447 and 325 read with s.  149  I.P.C.  and sentenced  each of them to suffer rigorous imprisonment  for 15  days  and to pay a fine of Rs. 50/- and  in  default  of payment of fine to suffer further rigorous imprisonment  for 15  days  on the first count under s. 447 read with  s.  149 I.P.C.  and  sentenced  each of  them   to  suffer  rigorous imprisonment for six months ’and to a fine of Rs.’ 200/or in default  of  payment  of fine  to  suffer  further  rigorous imprisonment for one month on the second count under s.  325 read with s. 149 I.P.C.  He did not pass any fresh  sentence on the third count under s. 147 I.P.C.  He directed that the substantive sentences of imprisonment passed against accused on  both counts should run concurrently.  He  also  directed that  in  case  the amount of fine was recovered, Rs.  200/- should be paid to the complainant Murlidhar as  compensation for  the injury sustained by him under s. 545(1)(b)  of  the Code of  Criminal  Procedure. The accused went up in  appeal which was heard by the Additional Sessions Judge at  Nanded. The  Sessions  Judge allowed the appeal and  set  aside  the orders  of conviction and directed the accused to be set  at liberty.  The ’order for payment of fine also was set aside. The  State went up in appeal against the order of  acquittal to the High Court.  The appeal was allowed by the High Court and  the order of acquittal was set ’aside.  The High  Court convicted all the six accused under  ss. 147, and  447   and 325  read  with s. 149 I.P.C. and taking the view  that  the assault  on  the village teacher was wanton  and  unprovoked proceeded  to deal with the culprits more firmly  that   the trying  Magistrate.   It  passed  sentence  on  the   second accused  holding him  responsible  for the blow which caused

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the  fracture  of the left ulna of the complainant,  to  one year’s rigorous imprisonment  and  a  fine  of Rs. 300/- and two  months’  further  rigorous   imprisonment   in  default under  s. 325 read with s. 149 of the Penal Code.   It  also held  that the remaining accused had played a  comparatively minor part and injuries inflicted by them were simple.   The sentence  passed  on each of them was six  months’  rigorous imprisonment and L2Sup.CI/70--3 230 a  fine of Rs. 100 and one month’s further  imprisonment  in default  under  s. 325 read with s. 149  I.P.C.   A  further sentence of three months’ imprisonment was passed on all the accused  for the offence under s. 447 read with s. 149.   No separate  sentence  was  passed under s.  147.   This  court granted  special leave to appeal to the accused "limited  to the  question  of legality of sentence passed  by  the  High Court."     Counsel  on  behalf of the appellants  put  forward  his argument  in  a two-fold manner.  His first  contention  was that  it  was  not  open  to  the  High   Court   exercising appellate  jurisdiction  under s. 423 (1)(a) of the Code  of Criminal  Procedure  to enhance the sentence passed  by  the trial  Magistrate.   The second branch of his  argument  was that  even  if the High Court was competent to do.  so,  the appellants  should have been asked to show cause   why   the sentence  imposed on them by the Magistrate  should  not  be enhanced  and  in  the absence of such  an  opportunity,  no enhancement of sentence was competent.  As the trial was  by a  Magistrate of the First Class the maximum sentence  which could  have been imposed on the accused was under s.  32  of the  Code limited to a term of imprisonment  no.t  exceeding two years and  a fine not exceeding Rs. 2,000/-.  Under  the Indian  Penal  Code the limit of punishment for  an  offence under s. 447 is imprisonment for a term which may extend  to three  months or with fine which may extend to Rs. 500/-  or with both, but an offence under s. 325 Can be punished  with imprisonment  of  either description for a  term  which  may extend to seven years besides. a fine.     Under s. 417(1) of the Criminal Procedure Code an appeal against acquittal lies only to a High Court.  Under s.  4-18 an  appeal lies on ’a matter of fact as well as on a  matter of  law except in cases where the trial is by a  jury.   Ss. 419  and 420 deal with the procedure for lodging  an  appeal and  s. 421 gives the appellate court the power  to  dismiss the appeal summarily on receiving the petition of appeal  if it  considers  that  there  is  no  sufficient  ground   for interfering  with  the impugned order.  Under s. 422  it  is obligatory on the appellate court if it does not dismiss the appeal  summarily  to  cause  notice  to  be  given  to  the appellant  or to his pleader of the time and place at  which the  appeal will be heard and a like notice to be  given  to the accused.     The  powers of the appellate court in disposing  of  the appeal are contained in s. 423 of the Code.  The court after giving the notice of appeal under s. 422 has to send for the record  of  the  case and after  perusing  such  record  and hearing  the appellant or his pleader if he appears and  the Public Prosecutor if he appears and in case of appeal  under s. 417 the .accused if he appears, it may dismiss the appeal in case it is satisfied that there is no sufficient ground          231 for  interfering.   Where  the appeal is from  an  order  of acquittal  it may under s. 423(1)(a) reverse such order  and direct  that further enquiry be made or that the accused  be

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retried  or committed for trial as the case may be and  find him guilty and pass a sentence on him according to law.   No limits ’are here set to the sentence which may be passed  by the  appellate  court except that it must be  "according  to law".   This power may be  contrasted with the  power  under cl.  (b)  of  s.  423(1  )  dealing  with  appeals  from   a conviction.  For such appeals the Legislature specified  the powers of the appellate court with a good deal of precision. Under sub-clause (b) a court can--                   "(1) reverse the finding and sentence  and               ’acquit or discharge the accused or order  him               to   be   tried  by  a  court   of   competent               jurisdiction  subordinate  to  such  appellate               court or committed for trial, or                   (2)  alter  the finding,  maintaining  the               sentences,  or  with or without  altering  the               finding reduce the sentence, or                   (3  ) with or without such  reduction  and               with  or without altering the  finding,  alter               the nature of the sentence but subject to  the               provisions of s. 106 sub-s. (3), not so as  to               enhance the sentence." It  would appear from the above that wide though the  powers of  the appellate court be in dealing with an appeal from  a conviction,  it has no jurisdiction to enhance the  sentence even  if  it  alters the finding, or  without  altering  the finding takes the view that greater punishment than what was meted is called for.     Sub-cl.  (1 ) (b) however is not the last word  for  cl. (iA)  introduced in the section in the year  1955  expressly provides that a High Court exercising jurisdiction under cl. 1  (b)  may enhance the  sentence  notwithstanding  anything inconsistent therewith contained in the said clause provided the accused has had an opportunity of showing cause  against such enhancement.     S. 423 cl. (1) (b) is based on the principle that  where it  is  the  convicted  person  who  complains  against  the punishment given to him, he should not be put in peril of  a greater  punishment if the State takes no exception  to  the order  impugned by the convicted person.  The  insertion  of cl.  (1A) makes it clear that although the powers of  courts subordinate  to the High Court are limited under cl.  (1)(b) the  High  Court may in a proper case enhance  the  sentence after  giving  an opportunity to the accused to  show  cause against the proposal. 232     Apart  from  the powers under Chapter XXXI of  the  Code (containing  sections 404 to 431) which  principally   deals with  appeals  the  High  Court has  powers  infer  alia  of revision under Chapter XXXII of the Code.  Under s. 435  not only  the High Court but even courts subordinate to  it  may call for and examine the record of any proceeding before any inferior criminal court 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 proceeding of such inferior  court".   S. 439  deals  exclusively  with the  High  Court’s  powers  of revision. Under this section the High Court is empowered  in the  case  of any proceeding the record o,f which  has  been called for by  itself  or which has been reported for orders or  which otherwise comes to its knowledge, to exercise  the powers  conferred on a court of appeal by sections  423,426, 427 and 428 or on a court by s. 338 (power to direct  tender of  pardon) and may enhance the sentence but sub-s.  (2)  of the  section lays down that such an order is not to be  made

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to   the  prejudice  of  the  accused  unless  he  has   ’an opportunity of being heard either personally or by a pleader in  his own defence. Further when an accused is called  upon to  show cause why  his sentence should not be  enhanced  he has a right to challenge his conviction under sub-s. ( 6 ).     Referring  to. the above provisions of the Code  counsel for  the appellants argued that in ’all cases where it  was, considered necessary the Legislature was careful to: provide that  the  accused should never be subjected  to  a  greater punishment  by a superior court unless he was asked to  show cause  against  the proposed enhancement.  As there  was  no such  provision in s. 423 ( 1 ) (a) the Legislature must  be taken  to  have contemplated that in any case of  an  appeal against acquittal the accused should not ’be subjected to  a punishment  greater than what had been meted out to  him  by the punishing court. It was also argued that the words in s. 423 ( 1 ) (a) empowered the appellate court (the High  Court in this case) to pass sentence on the accused .according  to law which is in contrast to the words used in s. 31 (1 )  of the  Code under which  a High Court may pass  "any  sentence authorised  by  law".  It was argued that s. 423 (1  )  (’a) thus  cuts  down  the  power  which  the  High  Court  might otherwise have had under s. 31 ( 1 ).     In  our view the difference in the wording of  s.  31(1) and s. 423(1) (a) is a matter of no moment.  The  expression "authorised by law" means sanctioned by law while "according to law" means in conformity with law.  The question  remains ’as  to  what would be a sentence according to  law  when  a High  Court  sets aside an order of acquittal when the  same is preceded by a sentence of an inferior court.  Is the High Court  empowered to award any sentence which the law  allows under the relevant section of the 233 Indian Penal Code, or is its jurisdiction limited to such  a sentence as was within the competence of the court punishing the  offenders  or  again, is it  to  restore  the  sentence originally passed ? Let us look at the question ,apart from the authorities.  An appeal  is  a  creature  of a statute  and  the  powers  and jurisdiction    the appellate court must be circumscribed by the  words  of  the statute.  At the same time  a  court  of appeal  is a "court of error" and its normal function is  to correct  the  decision appealed from  and  its  jurisdiction should  be co-extensive  with that of the trial  court.   It cannot  and ought not to do something which the trial  court was  not  competent to do.  There does not seem  to  be  any fetter  to its power to do what the trial court  could  do.. In  this case the trial Magistrate was competent to  pass  a sentence  of  imprisonment  up to two  years  and  the  High Court’s  jurisdiction hearing an appeal  would therefore  be limited to a sentence up to that period and no more.     A special provision for asking the accused to show cause when  the appeal is from an order of conviction or when  the High Court exercises its revisional jurisdiction, is not  in derogation   of the above rule.  As already indicated,  when the  accused  prefers an appeal and the State  is  satisfied with  the  punishment meted out it is only logical  to  hold that the appellant should not stand in peril of something to his  further detriment unless he is put on notice  that  the power  of enhancement may  be  exercised.  The same  applies to  the  High Court’s power of revision under s.  439.   The Legislature  felt  that when the High  Court  is  exercising powers in this regard, it should be given all the powers  of a  court  of  appeal  including the  power  to  enhance  the sentence.   Sub-s.  (2) of s. 439 is only meant to  give  an

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opportunity  to  the  accused so that he  be  not  condemned unheard  and  sub-s. (6) is. only an amplification  of  that principle and gives him .a right to challenge his conviction if he is put in peril of enhancement of sentence.     Where however the appeal is from ’an order of  acquittal the  matter  is  at large.  There is no  sentence  which  is binding  on  a  person who was once an  accused.   He  comes before the court with the presumption of innocence.  If  the court finds that the acquittal was not justified and that he was  guilty of the offence with which he was charged, it  is for  the appeal court to order punishment to fit the  crime. If  the appeal is from an order of acquittal with  no  prior order of sentence, the punishment must be commensurate  with the gravity of the offence.  But if the order of  ’acquittal is preceded by an order of conviction the court hearing  the appeal  from acquittal should not impose a sentence  greater than  what  the court of first instance could  have  imposed inasmuch  as  if the trial court had given him  the  maximum sentence  which it was competent to give and no  appeal  was preferred by the accused, the State could 234 not  have approached the High Court under any  provision  of the Code for enhancement of the sentence.  The interposition of  the  order  of  an  intermediate  court  of  appeal  and acquittal  of  the accused by it should not put the  accused in a predicament worse than that before the trial court.     We  may now proceed to examine the earlier  authorities. In  re  Ramaswami  Chetty  & Anr.  (1)  the  action  of  the appellate  Magistrate  enhancing a fine of Rs. 50/-  to  Rs. 65/-  was held to be illegal by the Madras High  Court.   In Muthiah  v. Emperor(2) it was said that an  appellate  court has  not  an unlimited power but was only  empowered  to  do which  the lower court could and should have done.  In  Sita Ram  v.  Emperor(3)  which went up to  the  Nagpur  Judicial Commissioner’s  court by way of  revision,   the  appellants had  been  convicted under s. 324 I.P.C.  and  sentenced  to rigorous  imprisonment for a term of four months each  by  a Magistrate  of  the Second Class.  On  appeal  the  District Magistrate  maintained  the  convictions  but  altered   the sentences on each of the accused to one of fine only; and in default  rigorous imprisonment was ordered for four  months. Before  the Judicial Commissioner it was contended that  the sentence  of fine imposed on the applicants was  illegal  so far  as it exceeded the maximum fine which could  have  been inflicted  by the Magistrate by whom they  were  tried.  The Court  held that when the District Magistrate  decided  that the  case was one punishable with fine only he  should  have inflicted  a fine which was within the jurisdiction  of  the trying Magistrate. The learned Judge relied on the decisions in  Mahmudi  Sheik v. Aji Sheik(4), Muthiah  v.  Emperor(5), Parameswara   Pillay  v. Emperor(6) and observed that  alike in  civil and in criminal cases the power of  the  appellate court  was  measured by the power of the  court  from  whose judgment or order the appeal before it had been made.     The  decisions in Maung E Maung v. The King(7),  Emperor v.  Md. Yakub Ali(8),  Lakshminarayana  v.  Apparao(9)   and Emperor  v.  Abbas  Ali(10)  are on  the   same   lines.   A different  note was however struck in Public  Prosecutor  v. Annamalai(1). This was a case of an appeal preferred by  the State against the acquittal of two ’accused by a Magistrate. The High Court finding the accused guilty took the view that "passing  sentence  according  to  law"  meant  passing  any sentence that could be given for the offence.  According  to the learned single Judge the powers (1) [1902] 2 Weir487.         (2) 29 Madras 190

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(3) 11 Indian Cases 788       (4) 21 Calcutta 48 (5) 29 Madras, 130            (6) 30 Madras 48 (7) A.I.R. 1940 Rangoon 118   (8) 45 Allahabad 594 (9) A.I.R. 1950 A.P. 530.    (10) A.I.R. 1935 Nagpur 139 (11) A.I.R. 1965 Madras 608 235 of  an  ,appellate  court  in  hearing  an  appeal   against acquittal  were not in any way restricted or limited to  the powers of the trial court.  He said:                   "Though  there  is no such  limitation  or               restriction,  still there is one  circumstance               which  altogether cannot be ignored and  which               must   indeed  be  considered before  imposing               the sentence and that is, what is it that  the               accused would have got if he was convicted  by               the  Magistrate.  He would  not have got  more               than  six months, the maximum the Second Class               Magistrate who tried him can give.                   The fact that he has been acquitted should               not  place  him  in  a  more   disadvantageous               position  than  if  he  were  convicted.   The               sentence  should not therefore be more  severe               than  what  he should have got in  a  case  of               conviction." Accordingly  the  accused  were  sentenced  to  six  months’ rigorous  imprisonment.  In an earlier decision of the  same High  Court  In re Tirumal Raju (1) another  learned  single Judge  though disposed    to accept the contention that  the appellate  Magistrate  had  no jurisdiction to enhance   the fine  beyond the powers of the trial Magistrate,  maintained the order sought to be revised by exercising powers under s. 439(3)  of the Code.  Running through the web of the.  above decisions   the  principle  almost universally  accepted  is that  in  exercise of its appellate powers  the  High  Court should not award a sentence which is beyond the jurisdiction the  trial  court and in our opinion this is  the  principle which should be adopted.     Our attention was however drawn to certain  observations in Jagat Bahadur Singh v. State of Madhya Pradesh(2) where a good  many  of the above authorities were taken note  of  by this Court. Referring inter alia to the cases of Emperor  v. Abasali Yusufalli(3), Emperor v. Muhammad Yakub Ali(4) Maung E.  Maung  v. The King(5) and In re Tirumal Raju(6)  it  was said that these cases laid down the correct law.  The  Court also added:                   "   ....  both on principle and  authority               it  is clear that the power of  the  appellate               court  to pass a sentence must be measured  by               the power of the court from  whose judgment an               appeal has been brought before it."     The  question is, can this observation be  pressed  into service by the appellants on the ground that as the Sessions Judge hearing (1) A.I.R. 1947 Madras 368.  (2) [1966] 2 S.C.R. 822. (3) 39 Calcutta/57          (4) 45 Allahabad 594. (5) A.I.R. 1940 Rangoon 118 (6) A.I.R. 1947 Madras 368 236 the  appeal from the order of the Magistrate could not  have enhanced the sentence, it was not open to the High Court  to do so when hearing an appeal from the order of acquittal  by the  Sessions Judge.  In other words, could the  High  Court have done what the Sessions Judge was not empowered to do. ? In  our  opinion, the .answer must be  in  the  affirmative. When  the  order  of the Magistrate was  set  aside  by  the Sessions  Judge the matter became one at large and the  High

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Court  hearing  an appeal therefrom was empowered  under  s. 423(1)(a)  to pass a sentence ,according to law.   It  could therefore pass any sentence which the Magistrate trying  the case was empowered to pass. and the High Court in this  case did not exceed that limit.  A  strange  result  would follow if  we  were to accept the contention.  If the  accused  had been acquitted by the Magistrate and the State had filed  an appeal against the order of acquittal, the High Court  would no  doubt have had power to impose ’any sentence, which  the Magistrate  would have been entitled to impose.  But if  the accused  is acquitted on appeal by the Sessions  Judge,  the power  of the High Court would be limited.  Surely the  Code does not contemplate this difference in the appeals under s. 417 Cr.P.C.     Further  the Sessions Judge would have been entitled  to recommend  enhancement of sentence to the High Court  if  he had maintained the conviction.  And the High Court could sua motu  have  issued notice for enhancement.  If  we  were  to accept the contention, finality is attached to. the sentence given by the Magistrate. We do. not think this is the scheme of the Code.  On the other hand the scheme of the Code seems to  be  to confer final authority on the  High  Court.   The first  contention  therefore  fails  and  we  hold  that  in disposing  of an appeal from an order of acquittal the  High Court is competent to. pass a sentence which the trial court was empowered to pass.     The  second  branch  of the argument  is.  without   any merit.  Where  the  accused is given notice  of  appeal  and actually takes part in the hearing before the High Court, it would be superfluous    to give him notice to show cause why a  sentence  within the competence of the  trial  Magistrate should  not  be passed. The accused knows or ought  to  know that  the High Court was. bound to form its own  conclusions on  the  material before it and award a sentence  which  the merits  of the case demanded within the limit of  the  trial court’s   jurisdiction.  The absence of a show cause  notice does not violate any known principle of natural justice.     On  the facts of the case, we are of the view  that  the sentence imposed by the High Court should be reduced to that originally imposed by the trial Magistrate.  The’ appeal  is allowed in part to this extent. G.C.                                  Appeal partly allowed. 237