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PETITIONER: SARJUG RAI AND OTHERS

       Vs.

RESPONDENT: THE STATE OF BIHAR

DATE OF JUDGMENT: 28/10/1957

BENCH: SINHA, BHUVNESHWAR P. BENCH: SINHA, BHUVNESHWAR P. KAPUR, J.L.

CITATION:  1958 AIR  127            1958 SCR  768

ACT:        Criminal  Revision-Enhancement  of  sentence-Power  of  High        Court-Enhancement  beyond the maximum sentence imposable  by        trial  Court-Code of Criminal Procedure (V of 1898), ss.  31        and 439.

HEADNOTE:        The appellants were tried before an Assistant Sessions judge        for  the offence of dacoity under s. 395 Indian Penal  Code.        Under  3.  31(3)  Code of Criminal Procedure,  (as  it  then        stood)  the Assistant Sessions judge could award  a  maximum        sentence of seven years rigorous imprisonment.  He convicted        the  appellants  and sentenced them to five  years  rigorous        imprisonment  each.   The appellants appealed  to  the  High        Court,  and the High Court, in its revisional  jurisdiction,        issued  a  notice  to  the  appellants  for  enhancement  of        sentence.  The High Court dismissed the appeal and  enhanced        the sentence to ten years rigorous imprisonment.        Held,   that   the  High  Court  had,  in   its   revisional        jurisdiction  under S. 439 Code of Criminal  Procedure,  the        power  to  enhance  the sentence beyond  the  limit  of  the        maximum  sentence that could have been imposed by the  trial        Court.        Bed Raj v. The State of Uttar Pradesh, (1955) 2 S.C.R.  583,        referred to.

JUDGMENT:        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 165  of        1957.        Appeal  by special leave from the judgment and  order  dated        the  4th August, 1955, of the Patna High Court  in  Criminal        Appeal  No.  699 of 1953 with Criminal Revision No.  205  of        1954,  arising out of the judgment and order dated the  12th        December, 1953,        769        of  the Court of the Assistant Sessions Judge, Second  Court        Chapra in Trial No. 70 of 1953.        G.   C. Mathur., for the appellants.        S.   P. Varma, for the respondent.        1957.  October 28.  The following judgment of the Court  was

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      delivered by        SINHA J.- The only question for determination in this appeal        is  whether the High Court in its  revisional  jurisdiction,        has the power to enhance the sentence, as it has done in the        instant case, beyond the limit of the maximum sentence  that        could  have been imposed by the trial court, on the  accused        persons.  The appellants, along with others, were placed  on        their trial before the Assistant Sessions Judge of Chapra in        the  district of Saran, for the offence of dacoity under  s.        395,  Indian Penal Code.  They, along with two others,  were        convicted under s. 395, Indian Penal Code, and sentenced  to        rigorous imprisonment for 5 years, by the Assistant Sessions        Judge,  by his Judgment and order dated December  12,  1953.        The  other  accused were acquitted.  The  convicted  persons        preferred  an appeal to the High Court at Patna.   The  High        Court,  in its revisional jurisdiction, while admitting  the        appeal, called upon the appellants to show cause why, in the        event of their convictions being maintained, their  sentence        should  not  be  enhanced.   The appeal  and  the  rule  for        enhancement  of sentence were heard together by  a  Division        Bench  of that Court.  The High Court, by its  judgment  and        order dated August 4, 1955, allowed the appeal of two of the        appellants and acquitted them but maintained the  conviction        as against the remaining six appellants.  On the question of        sentence,  the  High Court observed that the  "  offence  of        dacoity  has increased tremendously.  It is a  very  heinous        offence as innocent persons, while sleeping in their houses,        are  attacked and their belongings are taken by force."  The        High Court, therefore, was of the opinion that a sentence of        five    years’   rigorous   imprisonment   was    "extremely        inadequate".   It,  therefore, enhanced the sentence  to  10        years’ rigorous imprisonment in each        770        and obtained special leave to appeal limited to the question        of sentence only, the question being whether the High  Court        had  the  jurisdiction to enhance the  sentence  beyond  the        limits of the power of the trial court itself        The occurrence of dacoity which is the subjectmatter of  the        charge against the appellants, along with others, took place        on  the  night between July 1 and 2, 1952, in the  house  of        Ranjit Bahadur, a minor.  After midnight, 16 or 17  dacoits,        fully armed with various deadly weapons, broke open the main        entrance  door of the house with an axe.  After  going  into        the house, they broke open boxes and tampered with the  iron        safe,  and  removed articles worth twenty  thousand  rupees.        The  inmates of the house were over-powered.  Some of  them,        slipping  out of the house, raised a big fire which  is  the        customary form of alarm raised against the invading crowd of        dacoits.   On that alarm, a number of people of the  village        turned  up but had not the courage to face the  dacoits  for        fear  of being shot.  They contented themselves  with  using        brickbats  against  the dacoits who made good  their  escape        with  their  booty.  It would, thus, appear that  it  was  a        serious  occurrence involving the lives and fortunes of  the        inmates  of the house, and naturally, the High Court took  a        very serious view of the offence.        In  this Court, the learned counsel for the appellants,  who        appeared amicus curiae, contended, in the first place,  that        the  High  Court had exceeded its powers  in  enhancing  the        sentence  from  5 to 10 years inasmuch as  the  trial  court        itself  could not have inflicted a sentence of  imprisonment        for more that 7 years.  Alternatively, he contended that the        High Court had not kept in view the dictum of this Court  in        the case of Bed Raj v. The State of Uttar Pradesh (1), while        enhancing the sentence against the appellants before it. And

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      lastly, it was contended that in any view of the matter,  in        the  circumstances  of this case, the sentence of  10  years        rigorous imprisonment is too severe.  In our opinion,  there        is no substance in any one of these contentions.        (1)  [1955] 2 S.C.R. 583.        771        The main point on which the special leave was granted is the        question  of the competence of the High: Court to  impose  a        higher  sentence than that which could have been imposed  by        the  learned Assistant Sessions Judge under s. 31(3) of  the        Code  of Criminal Procedure.  The learned trial judge  could        not  have imposed a term of imprisonment exceeding 7  years.        The  argument  is  that the High  Court  could  enhance  the        sentence  from 5 to 7 years and no more.  This  argument  is        sought  to be enforced by the consideration that it must  be        presumed that the learned Assistant Sessions Judge had  been        entrusted  with  the trial of the accused persons  with  the        full  knowledge  that, on conviction,  the  accused  persons        could be punished with a term of imprisonment not  exceeding        7  years.   In its revisional jurisdiction, the  High  Court        could exercise its powers only to correct any mistakes  made        by   the  learned  trial  judge.   The  High  Court   could,        therefore, at the most, say that the trial judge should have        inflicted  the highest punishment, it had been empowered  by        the  Code,  to  impose.  The High Court could  not,  at  the        revisional  stage,  it  was further argued,  insist  upon  a        higher  punishment being awarded by the trial court  than  7        years’ rigorous imprisonment.        The  power  of  the High Court to  enhance  a  sentence,  is        contained in sub-s. (1) of s. 439 of the Code, which clothes        the  High Court with the powers of a Court of  Appeal  under        the Code, as also the power to enhance the sentence.  Sub-s.        (1) itself, does not contain any words of limitation on  the        power to enhance the sentence.  Hence, the High Court  could        impose  any sentence up to the maximum limit  prescribed  by        the  Indian Penal Code, for a particular offence.   In  this        case,  therefore,  the High Court could impose  the  maximum        sentence of imprisonment for life under s. 395, Indian Penal        Code.  Is there anything in the Code of Criminal  Procedure,        which  limits that power ?  The fact that the trial  of  the        case was entrusted to a court with a limited jurisdiction in        the matter of sentence, could not be used to impose a  limit        on the power of a High Court to impose a proper and        98        772        adequate  sentence.  That the Legislature did not intend  to        impose a limit on the power of the High Court to inflict  an        adequate sentence in a trial held by a Court of Session,  is        made  clear  by  the provisions of sub-s.  (3)  of  s.  439,        Criminal Procedure Code, which is in these terms:        "  (3) Where the sentence dealt with under this section  has        been  passed  by a Magistrate acting  otherwise  than  under        section 34, the Court shall not inflict a greater punishment        for  the offence, which, in the opinion of such  Court,  the        accused  has committed, than might have been  inflicted  for        such  offence by a Presidency Magistrate or a Magistrate  of        the first class."        Section  32  of  the  Code  lays  down  the  sentence  which        magistrates  may,  ordinarily, impose, which is  a  term  of        imprisonment  not  exceeding  two  years,  in  the  case  of        Presidency  Magistrates and Magistrates of the  first  class        (omitting all reference to fine).  But in certain  specified        areas,  s. 30 empowers the Government to invest  a  District        Magistrate  or a Magistrate, first class, with the power  to        try,  as  a  magistrate, all offences  not  punishable  with

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      death.   A magistrate so empowered under s. 30, may  pass  a        sentence  of  imprisonment for a term of 7  years  or  less.        Thus,  the powers of an Assistant Sessions Judge,  under  s.        31(3) and of a magistrate specially empowered under s. 30 to        impose  a sentence of imprisonment, are the same, the  terms        of  s.  31 (3) and s. 34 being almost identical.   From  the        terms of s. 439(3), it is clear that the only limitation  on        the power of a High Court to impose punishment is in respect        of  cases  tried by magistrates other than  those  specially        empowered  under s. 30, and thus, vested with higher  powers        of punishment under s. 34.  Sub-section (3) aforesaid,  does        not  impose  any limits on the powers of the High  Court  in        cases  dealt with by a magistrate specially empowered  under        s. 30.  Hence, in such a case, the High Court has the  power        to impose a sentence higher than that which could have  been        imposed  by  such  a magistrate.  That  sub-section  has  no        reference to a trial held by a Court of Session. If the High        Court can enhance the sentence beyond        773        the maximum sentence which could be awarded by a  magistrate        specially  empowered  under s. 30, and acting under  s.  34,        there  is no reason to hold that the High Court’s  power  in        respect  of  enhancing the sentence in a trial  held  by  an        Assistant  Sessions  Judge,  should be limited  in  the  way        suggested  on behalf of the appellants.  Sub-section (3)  of        s. 439, thus, makes it clear that there is no limitation  on        the  power  of the High Court to enhance a sentence  to  the        maximum prescribed by the Indian Penal Code, except in cases        tried  by magistrates other than those especially  empowered        under  s. 30, Criminal Procedure Code.  The learned  counsel        for the appellants very properly informed us that there  are        some  reported  decisions of some of the High  Courts  which        have-gone  against  his  contention, and that  there  is  no        decision  which  has  taken  a  view;  in  support  of   his        contention.   In our opinion, there is no provision  in  the        Code  of Criminal Procedure, which limits the power  of  the        High Court in the way suggested on behalf of the appellants,        and there are no reasons which militate against the decision        of  the High Courts taking that view.  The case relied  upon        on  behalf  of  the appellants in support  of  their  second        contention (Bed Raj v. The State of Uttar Pradesh (1)), also        seems  to point to the same conclusion as will  appear  from        the following observations        at p. 584:        "  Now,  though no limitation has been, placed on  the  High        Court’s  power to enhance it is nevertheless a judicial  act        and,  like  all  judicial  acts  involving  an  exercise  of        discretion,  must  be  exercised  along  wellknown  judicial        lines."        On  the  second  contention,  there is  no  doubt  that  the        question of sentence is a matter of discretion which has  to        be exercised in a judicial way, that is to say, the sentence        imposed by the trial court should not be lightly  interfered        with and should not be enhanced. unless the appellate  court        comes  to the conclusion, on a consideration of  the  entire        circumstances  disclosed in the evidence, that the  sentence        imposed is inadequate.  In the instant case, the High  Court        has        (1)  [1955] 2 S.C.R. 583.        774        pointed out that the incidence of the offence of dacoity has        gone  up to such an extent that in proved cases  of  serious        dacoity,  like  the  one in hand,  deterrent  punishment  is        called  for.  The High Court was, therefore,   justified  in        imposing  the sentence of 10 years’  rigorous  imprisonment.

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      In  view  of  the circumstances disclosed in  the  case,  as        indicated above, it cannot be asserted that the sentence  as        enhanced  by  the High Court is excessive.  The  appeal  is,        accordingly, dismissed.        Appeal dismissed.