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PETITIONER: JAGAT BAHADUR SINGH

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT: 30/11/1965

BENCH: MUDHOLKAR, J.R. BENCH: MUDHOLKAR, J.R. SARKAR, A.K. BACHAWAT, R.S.

CITATION:  1966 AIR  945            1966 SCR  (2) 822  CITATOR INFO :  E          1971 SC 840  (15)

ACT: Code  of Criminal Procedure (Act 5 of 1898), ss.  31(1),  32 and 423(1)(a)-Maximum sentence appellate court can impose.

HEADNOTE: The appellant was tried by the Magistrate of the First Class for offences under ss. 170, 342 and 392 of the Indian  Penal Code and was acquitted.  On appeal, the High Court set aside the  acquittal, and in respect of the offence under s.  392, sentenced him to 4 years R.I. In  his appeal to this Court,, the appellant contended  that if the Magistrate had convicted him be could not have passed a sentence exceeding 2 years for the offence under s. 392 by virtue  of  s.  32  of  the  Criminal  Procedure  Code,  and therefore,  the  High  Court was  incompetent  to  pass  the sentence of 4 years. HELD:  As  an appellate court is not competent to  impose  a punishment  higher  than the maximum that  could  have  been imposed  by the trial court, the High Court was in error  in sentencing the appellant to undergo imprisonment in  respect of the offence under s. 392 for a period exceeding 2  years. [826 G; 827 C] An  appellate Court is a "court of error", that is, a  court established  for correcting an error.  If, while  purporting to  correct  an  error,  the  appellate  court  were  to  do something  which  was  beyond the competence  of  the  trial court, it could not be said to be correcting an error of the trial court.  Therefore, 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. [826 H; 827 A, B] Case law referred to.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 156 of 1963. Appeal  by special leave from the judgment and  order  dated

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February  8,  1963  of  the Madhya  Pradesh  High  Court  in Criminal Appeal No. 121 of 1962. E.   C. Agarwala for P. C. Agarwala, for the appellant. M.   N. Shroff for 1. N. Shroff, for the respondent. The Judgment of the Court was delivered by Mudholkar, J. The appellant, a police constable," was  tried for  offences under ss. 170, 342 and 392, Indian Penal  Code but  was  acquitted by the trying Magistrate  of  all  these offences.   The High Court to which an appeal was  preferred by  the  State  Government  set  aside  the  acquittal   and convicted  the  appellant  of each of  these  offences.   It sentenced him to rigorous imprison-                             823 ment  for  a period of one year in respect  of  the  offence under  s. 170 and to a period of six months for  an  offence under  s. 342.  In respect of the offence under S.  392  the High  Court sentenced him to undergo  rigorous  imprisonment for a period of four years and further ordered that all  the sentences should run concurrently. Briefly  stated the prosecution case was that the  appellant who was posted at Rewa took leave for 15 days from August 7, 1958 with a view to go to his village Hati in District Satna but instead went to Jabalpur wearing the uniform of a police head  constable.   There he met the complainant  Ram  Kumar, P.W. 1 at the Omti Bridge near the Pan shop of one Saligram, P.W.  2. He engaged him in conversation and learnt from  him that  the  latter was from village Beldara,  police  station Maihar.   He told Ram Kumar that a theft had  been  reported from  that  area  and  that  he  had  come  to  Jabalpur  to investigate  into  it  and  that  Ram  Kumar  answered   the particulars of the man wanted in connection with the  theft. It  may  be  mentioned that Ram Kumar  was  wearing  a  gold ’mohar’,  threaded  in a piece of string,  round  his  neck. Questioned about it by the appellant he told him that he had received  it  as  a present  from  his  father-in-law.   The appellant took Ram Kumar along with him from place to  place and  at one place he tried to relieve Ram Kumar of the  gold mohar  saying  that  it was a  stolen  article.   Ram  Kumar resisted  and protested and so also did one  Phoolchand  who was  there.   The appellant then got into a  rickshaw  along with  Ram Kumar on the pretext of taking him to  the  police station.  Instead of stopping at the police station he asked the  rickshaw  to proceed to Katni road  and  dismissed  the rickshaw  puller  after  paying his fare.  He  then  gave  a beating  to Ram Kumar and snatched the gold mohar  from  his neck.  While they were standing on the road to Katni a motor truck  happened to pass that way.  The appellant stopped  it and  got into it along with Ram Kumar and proceeded  towards Katni.  After reaching the place the appellant sent off  Ram Kumar  to fetch a cup of tea for him.  While Ram  Kumar  was away the appellant got into a goods train which happened  to be  leaving Katni railway station in the direction of  Satna at  that  time and travelled in the brake van.   Ram  Kumar, finding that the appellant had escaped, lodged a report with the  police.  Eventually the appellant was  apprehended  and challenged.   He  denied the offence and said  that  he  was falsely  implicated  and  also said that it was  a  case  of mistaken identity. The  main question was regarding the  appellant’s  identity. There  is  voluminous evidence on the point which  has  been disp. CI/66-6 824 cussed  fully  by  the High Court.  On  the  basis  of  that evidence  the  High Court came to the  conclusion  that  the person  who had snatched away the gold mohar from Ram  Kumar

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was no other than the appellant. Mr.  E. C. Agarwala who appears for the appellant  tried  to urge  before us that the High Court was in error in  holding that  the person who committed the various offences was  the appellant.  This Court does not ordinarily interfere with  a finding of the High Court based on appreciation of evidence, unless there are strong reasons for doing so.  Mr.  Agarwala could  point out no other reason except this that  the  High Court  had taken a view of evidence different from  that  of the   trying  Magistrate  and  set  aside  the   appellant’s acquittal and that therefore this Court should appraise  the evidence.   That of course is no ground for  discarding  the finding  of the High Court.  The High Court has  given  good reasons  in  its  judgment  for  accepting  the  prosecution evidence  for coming to the conclusion that the identity  of the  appellant  was  established.  It has  also  given  good reasons  for not accepting the defence evidence.   In  these circumstances  we did not permit learned counsel to take  us through the evidence adduced in the case. The  only  other  question  urged  by  learned  counsel   is regarding  sentence.  He points out that the  appellant  was tried  by a Magistrate of the First Class and that under  s. 32  of the Code of Criminal Procedure the  maximum  sentence which such a Magistrate is entitled to pass is  imprisonment for a term not exceeding two years and a fine not  exceeding Rs.  2,000/-.   There is nothing to show  that  the  learned Magistrate was invested with powers under s. 30 of the  Code by virtue of which he could, under s. 34, pass a sentence of imprisonment up to the limit of seven years.  If the learned Magistrate,  instead of acquitting the appellant,  had  con- victed him, he could, therefore, not have passed a  sentence of imprisonment in respect of the offence under s. 392 for a term exceeding two years and that, therefore, the High Court was incompetent to pass the sentence of imprisonment of four years. Mr. Shroff, however, contended that even though that was  so the  High  Court  having held the appellant  guilty  of  the offence under s. 392 is as competent to pass any sentence in respect  of that offence as is permissible under the  Indian Penal  Code.  In support of the contention he relied on  cl. (a) of S. 423 (1) of the Code of Criminal Procedure.   Under this clause, after setting aside the acquittal of a  person, the  appellate court can "pass sentence on him according  to law." It is true that S. 31 (1) also                             825 empowers the High Court to pass any sentence, authorised  by law.   But the question is whether these  provisions  enable the High Court to pass a sentence which the Court from whose decision  an  appeal has been preferred before  it  was  not authorised to pass. There  are  several cases of the High Courts in  which  this question  has  been considered.  One of them is  Sitaram  v. Emperor(1)   where   the  question  has   been   elaborately discussed.   Stanyon  A.J.C. who decided the case  has  said thus : "The  Magistrate who tried the case had power under  section 32 of the Code of Criminal Procedure, to pass a sentence  of imprisonment  for a term not exceeding six months, and  fine not  exceeding  two hundred rupees.  By section 423  of  the same Code, the District Magistrate, sitting as an  Appellate Court  on an appeal from the conviction of  the  applicants, was  empowered,  on  maintaining  the  conviction  of   each applicant, to alter the nature of the sentence, subject only to  the  proviso  that he did not  enhance  the  same.   The alteration  of a sentence of imprisonment for  four  months,

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into a sentence of fine in the sum of Rs. 300, or in default imprisonment  for four months, was clearly  no  enhancement, but A reduction in severity of the sentence.  Section 402 of the  Code  follows  human  sentiment  and  common  sense  in regarding  the  Substitution of fine for imprisonment  as  a merciful   commutation   of  punishment.    Therefore,   the sentences ordered by the District Magistrate were all within the  letter  of the rule set out in section  423  aforesaid. Section 32 contains no word which makes it applicable to any Court  of Appeal or Revision : nor is there any  restricting proviso  to  be found in section 423 or  any  other  section dealing  with  appellate jurisdiction, such as  we  read  in section  439,  subsection (3).  Nevertheless, it is  a  rule underlying  the whole abric of appellate  jurisdiction  that the power of an Appellate Court is measured by the power  of the Court from whose judgment or order the appeal before  it has  been made.......... it is a fundamental principle  that every  Court  of  Appeal  exists  for  the  purpose,   where necessary, of doing, or causing to be done, that which  each court subordinate to its appellate jurisdiction should have, but  has  not,  done,  or caused to  be  done,  and  nothing further.    Therefore,   the  jurisdiction  in   appeal   is necessarily  limited in each case to the same extent as  the jurisdiction from which that particular case comes.  It is a proposition  which  cannot  be  disputed  that  all   powers conferred  upon  an  Appellate  Court,  as  such,  must   be interpreted as subject to the general rule above stated.  In a case reported at 2 Weir 487, the Madras, (1)  7 Nag.  L.R. 109: 11 I.C. 788. 826 High  Court  held that an Appellate Court  cannot  pass,  on appeal,  a  sentence which the original Magistrate  was  not competent by law to pass.  Section 106, sub-section 3 of the Criminal Procedure Code, 1898, appears to give an  Appellate Court  power  to  make an order under that  section  in  any appeal  in  which  an accused may  have  been  convicted  of rioting, assault, or other offence referred to therein.   If such  a person were acquitted by a District Magistrate,  but convicted on appeal by the High Court, there can be no doubt that the Appellate Court, as such, could make an order under this sub-section.  Its power to make the order would not  be confined  to cases where conviction had taken  place  before the  Magistrate.  But it has been held-and, in  my  opinion, rightly  held-that  the  Appellate Court, as  such,  is  not ’competent  to  make  an  order under  section  106  if  the Magistrate,  from whose decision the appeal has come  before it,  could not have made it.  This dictum was laid  down  in Mahmudi Sheikh v.   Aji Sheikh(1) Muthiah v. Emperor(2);  and Paramasiva Pillai v.     Emperor(3).   In the second of  the above cases the learned Judges remarked,-               ’We think that the power given to an Appellate               Court  to make an order under this section  is               not  an unlimited power to make such an  order               in  any circumstances, but is to be  taken  as               giving  the Appellate Court power to  do  only               that  which the lower Court could  and  should               have done.’ I  do not see why any other rule of construction  should  be applied  to  the  power given by section 423  to  alter  the nature of a sentence." We have seen the three decisions to which the learned  Judge has   made  reference  and  they  undoubtedly  support   his conclusion.   This  decision  was  followed  in  Emperor  v. Abasali  Yusufalli(4)  and  also in  Mehi  Singh  v.  Mangal Khandu(5);  Emperor  v. Muhammad Yakub Ali(1);  and  Maung  E

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Maung v. The King(1).  In in re Tirumal Raju(8) it has  been held  that an appellate court is not competent to  impose  a punishment  higher  than the maximum that  could  have  been imposed by the trial court.  It seems to us that these cases lay  down the correct law.  An appeal court is after all  "a court of error", that is, a court established for correcting an  error.  If, while purporting to correct  an  error,  the court (1)  I.L.R. 21 Cal. 622. (3)  I.L.R. 3) Mad. 48. (5)  I.L.R. 39 Cal 157. (7)  A.I.R. 1940 Rangoon 118. (2)  I.L.R. 29 Mad. 190. (4)  A.I.R. 1935 Nag. 139. (6)  I.L.R. 45 All. 594. (8)  A.I.R. 1947 Mad. 868. 827 were to do something which was beyond the competence of  the trying court, how could it be said to be correcting an error of  the trying court ? No case has been cited before  us  in which  it has been held that the High Court,  after  setting aside   an  acquittal,  can  pass  a  sentence  beyond   the competence   of  the  trying  court.   Therefore,  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 High Court was thus  in  error  in sentencing the appellant to undergo imprisonment in  respect of  the  offence  under s. 392 for a  period  exceeding  two years.  Accordingly we allow the appeal partially and reduce the sentence of imprisonment in respect of the offence under S. 392 from rigorous imprisonment of four years to a  period of  two years.  Subject to this modification we dismiss  the appeal. Appeal allowed in part.. 828