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PETITIONER: JAYARAM VITHOBA AND ANOTHER

       Vs.

RESPONDENT: THE STATE OF BOMBAY.

DATE OF JUDGMENT: 13/12/1955

BENCH: AIYYAR, T.L. VENKATARAMA BENCH: AIYYAR, T.L. VENKATARAMA BOSE, VIVIAN AIYAR, N. CHANDRASEKHARA

CITATION:  1956 AIR  146            1955 SCR  (2)1049

ACT: Code  of Criminal Procedure (Act V of 1898), s.  423  (1)(b) and  (d),  s.  439-Powers of  Appellate  Court-High  Court’s powers  of  revision-Conviction by the trial  Court  but  no sentence-High  Court  confirming  conviction  and   awarding sentence-Legality-Bombay Prevention of Gambling Act  (Bombay Act IV of 1887), ss. 4(a), 5.

HEADNOTE: The first appellant was prosecuted under s. 5 of the  Bombay Prevention of Gambling Act (Bombay Act IV of 1887) for being present  in  a gaming house for the purposes of  gaming  and was,  in  addition,  charged under s. 4(a) of  the  Act  for keeping  a  gaming house.  The  Presidency  Magistrate,  who tried the case, found him guilty under s. 4(a) and sentenced him  to three months’ rigorous imprisonment.  He also  found him guilty under s. 5 but awarded no separate sentence under that  section.   In revision, the High Court set  aside  the conviction under s. 4(a), but confirmed that under s. 5  and awarded  a sentence of three months’  rigorous  imprisonment under  that  section.   It  was  contended  for  the   first appellant  that  the  High  Court  had  no  power  under  s. 423(1)(b)  of the Code of Criminal Procedure to  impose  any sentence  under  s. 5 of the Act when no such  sentence  had been  awarded by the Magistrate and that, in any event,  the award of such a sentence amounted to an enhancement and was, in consequence, illegal, as no notice had been issued there- for, as required by law. Held,  that  though  s. 423(1)(b) of the  Code  of  Criminal Procedure was not applicable to the case, the High Court had power to pass the sentence under s. 423(1)(d). The law does not envisage a person being convicted for an 1050 offence  without a sentence being imposed therefor, and  the award of a sentence by the High Court was only consequential on  and incidental to the affirmance of the conviction,  and it  was a just and proper order to be passed under the  law, within  the meaning of s. 423(1)(d) of the Code of  Criminal Procedure. Such  a sentence cannot amount to an enhancement as  it  was awarded only for the first time in appeal.  Even if it  were

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to  be  regarded as an enhancement, the order  of  the  High Court  could not be held to be bad for want of notice  under s.  439(2),  as the first appellant had  an  opportunity  of showing  cause against the conviction and enhancement,  and, in any event, no prejudice had resulted to him by reason  of the absence of a formal notice under the section. Ibrahim  v. Emperor (A.I.R. 1940 Bom.  129),  Superintendent and  Remembrancer  of Legal Affairs v. Hossein  Ali  (A.I.R. 1938  Cal. 439) and Pradip Chaudhry v. Emperor (A.I.R.  1946 Pat. 235), disapproved.

JUDGMENT: CRIMINAL APPELLATE  JURISDICTION: Criminal Appeal No. 75  of 1954. Appeal by Special Leave from the Judgment and dated the 24th July  1953  of  the Bombay High Order a  Court  in  Criminal Revision  Application  No. 669 of 1953 arising  out  of  the Judgment and Order dated the 29th June 1953 of the Court  of Presidency  Magistrate, 9th Court at Bandra, Bombay in  Case No. 11872/73/P of 1952., P.   K. Chatterjee, for the appellants. N.   S.   Bindra,  (P.   G.  Gokhale,  with  him)  for   the respondent. 1955.  December 13.  The Judgment of the Court was delivered by VENKATARAMA  AYYAR  J.-The  first  appellant  was,  at   the relevant  date,  in possession of room No. 10 in  House  No. 334,  Bazar Road, Bandra, Bombay., On information that  this room  was  being  used as a gaming  house,  Mr.  Bhatt  Sub- Inspector  of Police, raided it on 19-9-1952, and found  the two  appellants  and  four others 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 1051 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.  The  appellants  took the  matter in revision to the High Court, which  set  aside the conviction of the first appellant under section 4(a) but confirmed  that under section 5, and awarded a  sentence  of three months’ rigorous imprisonment under that section.   As regards  the second appellant, both the conviction and  sen- tence  were  confirmed.   Against this  order,  the  present appeal by special leave has been preferred.  Both  the  courts below have concurrently  found  that  the appellants were present in a gaming house for the purpose of gaming,  and  have thereby committed an  offence  punishable under  section 5 of the Act, and that finding is  not  under challenge  before  us.  The only contention  that  has  been raised  before  us-and it arises only as regards  the  first appellant  is  that  as the High Court  had  set  aside  his conviction  under section 4 (a)’of the Act, it  should  have set aside the sentence passed on him under that section, and that  it had no power under the Code of Criminal  Procedure, to  impose  a sentence under section 5, when none  such  had

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been passed by the Magistrate.  This contention is based on, the terms of section 423.  Under that section, when there is an  appeal  against a conviction, the court  has  the  power under subclause (1)(b) either (1) to reverse the finding and sentence, and acquit or discharge the accused, or order  his retrial,  or  (2)  to alter the  finding  but  maintain  the sentence,  or  (3) to reduce the sentence  with  or  without altering  the finding, or (4) to alter the 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 1052 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 law. In  support of this contention, the decision in  Ibrahim  v. Emperor(1)  is relied on.  In that case, as in the  present, the  accused  was  convicted both  under  section  4(a)  and section  5  of  the Act, but a  sentence  was  passed  under section  4(a)  and  none under section  5.  On  appeal,  the learned Judges set aside the conviction under section  4(a), and   on  the  question  of  sentence,  observed  that   the Magistrate  was  wrong  in not  having  imposed  a  separate sentence under section 5, and continued: "He ought to have imposed a sentence under each section; but as he has not imposed a sentence under section 5, we  cannot impose  one  ourselves,  for that  would  be  enhancing  the sentence". These observations undoubtedly support the first appellant. A different view, however, was taken in two other decisions, which   may   now  be  noticed.    In   Superintendent   and Remembrancer of Legal Affairs v. Hossein Ali(2), the accused had been convicted by the Magistrate both under section  363 and  section 498 of the Indian Penal Code, and sentenced  to imprisonment under section 363, no separate sentence  having been  awarded  under section 498.  On appeal,  the  Sessions Judge  set aside the conviction under section 363, but  held the accused guilty under section 498.  On a reference as  to whether  the  Sessions Judge could pass any  sentence  under section  498, it was held by the High Court that  he  could, under section 423 (1) (b) of (1) A.I.R. 1940 Bom. 129.     (2) A.I.R. 1938 Cal. 439. 1053 the  Code of Criminal Procedure, as there was an  alteration 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 being

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reversed or altered by the court of appeal, it has reference to  the finding in respect of each of the  offences.   When, therefore,  the  High Court set aside the  conviction  under section  4 (a) and affirmed that under section 5, there  are two  distinct  findings,  one of  reversal  and  another  of affirmance, and there is no question of alteration. The  decision  in Superintendent and Remembrancer  Of  Legal Affairs v. Hossein Ali(1) was followed in Pradip Chaudhry v. Emperor(2).  There, the Sessions Judge convicted the accused under  sections  324 and 148 of the Indian  Penal  Code  and sentenced  them  to imprisonment under section 324,  but  no sentence was imposed on them under section 148.  On  appeal, the  High Court set aside the conviction under section  324, and  confirmed  that under section 148.   Dealing  with  the contention of the accused that the Court had no power  under section  423  (1) (b) of the Code of Criminal  Procedure  to award  a  sentence  under section 148,  the  learned  Judges observed  that  they  had  "ample  power  to  transpose  the sentence,  so long as the transposition does not  amount  to enhancement".   We  are unable to support the  reasoning  in this decision either.  There is nothing about  transposition of  sentence under section 423(1)(b).  It only provides  for altering the finding and maintaining the sentence, (1) A.I.R. 1938 cal. 439. (2) A.I.R. 1946 Patna, 235. 1054 and that can apply only to cases where the finding of  guilt under  one  section is altered to a finding of  guilt  under another.   The section makes 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 the power to impose  the  sentence which  it  has.  When a person is tried for an  offence  and convicted, it is the duty of the court to impose on him such sentence,  as  is  prescribed therefor.  The  law  does  not envisage  a person being convicted for an offence without  a sentence being imposed therefor.  When the trial  Magistrate convicted  the  first  appellant under  section  5,  it  was plainly his duty to have imposed a sentence.  Having imposed a sentence under section 4(a), he obviously considered  that there was no need to impose a like sentence under section  5 and   to   direct  that  both  the  sentences   should   run concurrently.   But,  in strictness, such an order  was  the proper  one  to  be passed.  The appellants  then  took  the matter  in  revision to the High Court, and  contended  that their  conviction under section 5 was bad.  The  High  Court went into the question on the merits, and found them  guilty under  that section.  It was the duty of the High  Court  to impose  a  sentence under section 5, and that  is  precisely what it has done.  The power to pass a sentence under  those circumstances  is derived from the law which enacts that  on conviction  a sentence shall be imposed on the accused,  and that  is a power which can and ought to be exercised by  all the courts which, having jurisdiction to decide whether the 1055

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accused  is  guilty  or not, find that he  is.   We  are  of opinion that this power is preserved to the appellate  court expressly  by  section 423(1)(d), which enacts that  it  can "make any amendment or any consequential 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(1) 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  opinion  that it was within the competence of  the  High Court to have passed the sentence which it had. There  is  another ground on which the order  of  the  lower court  can  be  sustained.  Against the  conviction  of  the appellants by the Presidency Magistrate, no appeal lay,  and accordingly the appellants preferred a revision to the  High Court.   Under  section  439(1)  of  the  Code  of  Criminal Procedure, the High Court in hearing a revision can exercise the  powers of a court of appeal under section 423, and  may enhance  the  sentence.  Under section 439(2), an  order  of enhancement  could not be passed, unless the accused bad  an opportunity of being heard in his defence, and under section 439(6),  the accused is also entitled, when proceedings  are taken  under  section  439(2), to  show  cause  against  his conviction.   The  substance  of the  matter  is  that  when proceedings are taken against the accused for enhancement of sentence  under section 439(2), he has a right to  be  beard both on the question of the propriety of the conviction  and of the sentence to be imposed on him if he is convicted.  In the present case, the first appellant had an opportunity  of pre- (1)  A.I.R. 1940 Bom. 129. 1056 senting  his case in respect of both these matters, and,  in fact, he availed himself of the same.  He himself raised  in his revision the question of his guilt under section 5,  and the  High  Court  on a consideration  of  all  the  evidence affirmed  his  conviction.   On the  question  of  sentence, section  5 enacts that when a person is found  guilty  under that  section, the punishment shall not be less  than  three months’  imprisonment  and  Rs. 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).  The law does  not  prescribe that  any  particular formalities should be  complied  with, before action is taken under that section.  It only provides that the accused should have an opportunity of showing cause against  the conviction and enhancement, and, as  the  first appellant  was heard on both these questions,  the  require- ments of the section were satisfied.  The order of the  High

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Court  could  accordingly be maintained under  section  439, even  if  it were to be regarded as an  enhancement  of  the sentence.   In any event, no prejudice has resulted  to  the first appellant by reason of the absence of a formal  notice under section 439(2). In the result, the appeal is dismissed. 1057