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PETITIONER: SAWAL DAS

       Vs.

RESPONDENT: THE STATE OF BIHAR

DATE OF JUDGMENT07/08/1974

BENCH: BEG, M. HAMEEDULLAH BENCH: BEG, M. HAMEEDULLAH BHAGWATI, P.N.

CITATION:  1974 AIR 2276            1975 SCR  (2) 607  1975 SCC  (3) 156

ACT: Practice--Conviction--Sentence    not   passed   by    trial Court--Whether appellate Court could pass sentence. Penal Code-S. 201.

HEADNOTE: The  applicant, was convicted and sentenced for  an  offence under  ss.  302/34, 1. P. C. In respect  of  his  conviction under  s. 201, I. P. C. no separate sentence was imposed  by the trial court.  The High Court converted the conviction to one  under s. 302 simpliciter but maintained his  conviction under s. 201. On  appeal, affirming the conviction under s. 201, 1. P.  C. this Court passed an: order of sentence under s. 201, 1.  P. C.  In  review application it was contended  that  since  no appeal  had been filed by the State against the  failure  of the trial court to pass a separate sentence under s. 201, I. P.  C. or against the failure of the High Court  to  specify the  sentence this Court could not pass any sentence at  all now tinder this section. Dismissing the Review Application, Held  :  (1) The consequential order  imposing  a  sentence, which  by  inadvertence was not passed by  the  High  Court, could-  be  passed  by  this Court.  The  power  to  pass  a sentence  is a power which can and ought to be exercised  by all courts which, having jurisdiction to decide whether  the accused  is guilty or not, find that he is.. This  power  is preserved  to  the  appellate court  experessly  by  s.  423 (1)(d),  Cr.   P.C.  which enacts that it  could  "make  any amendment  or consequential or incidental order that may  be just or proper". When a convictionis 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 theconviction  and  it is a  just  and proper order to be passed under the law. [609E; 610A-C] Vithoda  & Anr. v. The State of Bombay, [1955] 2SCR  1049  @ 1054-55, followed.. (2) The order passed showed that the applicant was not  only convicted under S. 201, I.P.C. but his sentence for the offence was  ordered to run concurrently with the life sentence.  Only the period of sentence was not fixed.  That was plainly erroneous.  The

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sentence could not be concurrent for the whole period of the sentence  under s. 302 I. P. C. When that sentence  was  set aside the period of’ sentence under s. 201, I.P.C. had to be fixed as a necessary consequence. [610 D-E]

JUDGMENT: CRIMINAL  APPELLATE  JURISDICTION : Review  Petition  (Crl.) No.19 of 1974. Application for review-of the Court’s Judgment dated the 9th January, 1974 in. Criminal Appeal No. 70 of 1972. Appeal  by Special Leave from the Judgment and  Order  dated the 16th September, 1971 of the Patna High Court at Patna in Criminal Appeal No. 90 of 1968 R.  Jethmalani,  S.  N.  Misra  and  S.S.  Jauhar  for   the Petitioner. R. C. Prasad, for the respondent. The Judgment of the Court was delivered by 608 BEG J.-This is an application for review Of an order  passed by us on 19-1-1974 on a Criminal Appeal by special leave. The  applicant  had  been tried, together  with  his  father Jamuna  Prasad and step-mother Kalawati Devi, and  convicted for the murder of his wife Chanda Devi, who, it was alleged, had frequent quarrels with Kalawati.  The applicant and  his father  and  certain other persons were also  charged  under Section  201 Indian Penal Code for disposing of the body  of Chanda  Devi  after the murder knowing that  .she  bad  been murdered. The  Trial  Court  convicted the applicant  Sawal  Das,  his father  JAmuna Prasad, and his step-mother Kalawati for  the offence of murder under Section 302 read with Section 34  I. P.  C. and sentenced each of them to  rigorous  imprisonment for life.  The applicant and his father were also  convicted under  Section 201 1. P. C. but no separate  sentences  were iMposed uPon them for this offence "In view of the fact that they had been sentenced under Sections 304/34 1. P. C." The High Court, on an appeal by convicted persons, set aside the  convictions of Kalawati for both offences  and  ordered her  to  be set at liberty.  It also allowed the  appeal  of Jamuna Prasad the father of the applicant to the extent that it set aside his conviction under Sections 302/34 1. P.  C., but it maintained his conviction under Section 201 I. P.  C. and sentenced him to three years’ rigorous imprisonment.  It converted  the  conviction of the  applicant  under  Section 302/34 I. P.  C. to a conviction under Section 302 I. P.  C. simpliciter and maintained the sentence of life imprisonment in the following terms:               "The   appeal  of  appellant  Sawal   Das   is               dismissed   maintaining  his  conviction   and               sentence under Section 201, Indian Penal  Code               and also maintaining the sentence upon him for               the   offence  of  murder  but  altering   the               conviction  from  Section  302/  34,  to  302,               Indian Penal Code simpliciter.  The  sentences               will  run concurrently as already  decided  by               the Court below". Apparantly,   the  High  Court  was  under   the   erroneous impression  that the applicant Sawal Das had been  not  only convicted  but  also  sentenced by  the  Trial  Court  under Section 302 1. P. C. as well as under ’Section 201 I. P.  C. The  Trial Court, as already observed, had neither passed  a separate sentence under Section 201 I. P. C. upon the appli-

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cant  nor indicated what it could be.  It  overlooked  that, according to law, a separate sentence ought to be passed for each offence even if sentences are made concurrent because a Court may as it has in this case, set aside a conviction  so that the need for a separate sentence must necessarily arise in such an event. This  Court dismissed the application of applicant’s  father Jamuna Prasad for leave to appeal against his conviction and sentence  under ’Section 201 I. P. C. It also refused  leave to the applicant to contest any point beyond the correctness of  his conviction and sentence under :Section 302 1. P.  C. This  Court,  after  having  considered  the  uncertainties, arising  from the facts found, as to whether all  the  three persons  accused of murder or only one of then, and, if  so, which of 609 them, committed. acts which could fasten the liablility  for murder  upon him or her sing y, came to the conclusion  that the  applicant must get the benefit of that  uncertainty  as the  charge under Section 34 1. P. C. had failed.  It  could not  be definitely said whether the applicant  had  actually taken  part, and, if so, what that war,, in’  murdering  his wife  Chanda Devi.  Nevertheless, this Court  was  convinced that  a murder of Chanda Devi had been committed after  the’ applicant,  his  father,  and  his  step-mother  were   seen following  her into a room in their house.  No one had  said what actually took place inside it. As  a necessary consequence of setting aside the  conviction of  the applicant under Section 302 I.P.C.  while  affirming this  conviction  under Section 201 I.P.C.,  as  no  special leave  to  appeal was granted against  this  conviction,this Court had to disposed the case by parking some order on  the sentence  under  Section 201 I.P.C. Indeed, there  was  some argument  in the course of hearing of the appeal as to  what would be the appropriate sentence in this state of affairs. The  applicant has now come up on a technical point.  It  is that, as no appeal was filed at all by the State against the failure of the Trial Court to pass a separate sentence under Section 201 I.P.C., or against the failure of the High Court to  specify  the sentence on the erroneous  assumption  that some sentence had actually been passed for an offence  under Section 201 I.P.C. upon the applicant, this Court could  not pass  any  sentence  at all now  upon  the  applicant  under Section 201 I.P.C. Learned Counsel for the applicant brought to  our  notice  Jayaram  Vithoba & Anr.  v.  The  State  of Bambay(1)  which was a case under the Bombay  Prevention  of Gambling Act.  This.  Court had laid down there (at p. 1054- 55):               "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

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             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 (1) [1955] 2 SCR. 1049 @ 1054-55. 610               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 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  (AIR               1940 Bom. 129) that such an order would be  an               enhancement of the sentence". We think that what was held in the case cited above  applies to  the case before us also.  It shows that a  consequential order,  in  the  circumstances set  out  above,  imposing  a sentence  which,  by an inadvertent, was not passed  by  the High Court, could be passed by this Court. The  contention  of  the applicant that,  as  no  particular sentence  was imposed by the High Court or the Trial  Court, the  applicant must be deemed not to have been sentenced  at all  is  also incorrect.  The orders passed  show  that  the applicant  was not only convicted under Section  201  I.P.C. but  his  sentence  for  the  offence  was  ordered  to  run concurrently with the life sentence.  Only the period of the sentence  was not fixed.  This was plainly  erroneous.   The sentence could not be concurrent for the whole period of the sentence  under  Section  302 I.P.C.  Therefore,  when  that sentence  was  set aside, the period of the  sentence  under Section   201  I.P.C.  had  to  be  fixed  as  a   necessary consequence. It  was  also  urged before us that we  had  not  heard  the applicant  on the question of sentence to be  imposed  under Section 201 I.P.C. We find, from our judgment, that this was done.   However, we have heard the applicant again  on  this review application after issuing notice to the State.  We do not  find sufficient grounds for revising the sentence of  7 years rigorous imprisonment and a fine of Rs. 1,000/-, ,and, in  default  of payment of fine imprisonment for  a  further term .of six months.  This petition is hereby dismissed.                        Review Petition dismissed. P. B. R. 611