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PETITIONER: U.J.S. CHOPRA

       Vs.

RESPONDENT: STATE OF BOMBAY.

DATE OF JUDGMENT: 25/03/1955

BENCH: DAS, SUDHI RANJAN BENCH: DAS, SUDHI RANJAN BHAGWATI, NATWARLAL H. IMAM, SYED JAFFER

CITATION:  1955 AIR  633            1955 SCR  (2)  94

ACT: Criminal  Procedure  Code,  1898 (Act V  of  1898),  s.  439 (1)(2)(6)  -Appellant convicted by Magistrate-His appeal  to High  Court dismissed summarily-After summary  dismissal  of that appeal State Government filed revision application  to. High  Court  for enhancement of sentence  Notice  issued  to appellant to show cause against enhancement under s. 439(2)- Whether  appellant  entitled  to  show  cause  against   his conviction under s. 439(6) of Code of Criminal Procedure.

HEADNOTE: The appellant in this appeal was convicted by the Presidency Magistrate,  Bombay,  of an offence under s.  66(b)  of  the Bombay  Prohibition Act (Act XXV of 1949) and  sentenced  to undergo imprisonment till the rising of the court and to pay a  fine  of  Rs.,  250 or in  default  to  undergo  rigorous imprisonment  for one month.  He preferred an appeal to  the High Court at Bombay, which was summarily dismissed.   After the  dismissal  of that appeal, the State of Bombay  made  a revision   application  to  the  High  Court   praying   for enhancement  of  the  sentence.  Notice was  issued  to  the appellant under s. 439(2) of the Code of Criminal  Procedure to show cause against enhancement. 95 Held  that the summary dismissal of the appeal preferred  by the appellant did not preclude him from taking advantage  of the  provisions  of  s.  439(6)  of  the  Code  of  Criminal Procedure  and showing cause against his conviction when  he was subsequently called upon to show cause why the  sentence imposed on him should not be enhanced.   Per  DAS J.-Sub-section (6) of section 439 of the Code  of Criminal Procedure confers a new and a valuable right on the accused.  The language used in sub-section (6) does not,  in terms, place any fetter on the right conferred by it on  the accused.  This new right is not expressed to be  conditioned or  controlled by anything that may have happened  prior  to the   revision   application  under  sub-section   (1)   for enhancement  of sentence.  Therefore, whenever there  is  an application for enhancement of sentence, a notice must issue under  sub-section (2) to the accused person to  show  cause and whenever such notice is issued, the accused person must,

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under  sub-section (6), be given an opportunity, in  showing cause  against enhancement, also to show cause  against  his conviction. It is not correct to say that sections 421, 435 & 439 of the Code give the court a discretion not to decide the appeal or revision brought before it.  The discretion conferred on the High  Court  does not authorise it to say that it  will  not look at the appeal or revision. The Court’s bounden duty  is to look into the appeal or revision and decide it,  although in  the  process of arriving at its decision it has  a  very wide discretion. There  is  no reason for holding that there is a  merger  or replacement  of the Judgment of the trial Court into  or  by the  Judgment  of  the High Court only when  the  appeal  or revision  is  heard on notice to the respondent  and  either allowed wholly or partially or dismissed but not when it  is heard  without  notice  to  the  respondent  and   dismissed summarily;  for this purpose it makes no difference  whether the  dismissal  is  summary or otherwise,  and  there  is  a judgment of the High Court in all the three cases.  The only difference  in substance is that in the first two cases  the judgment is final qua both parties while in the third  case, i.e., when an appeal or revision by the accused is summarily dismissed without issuing notice to the State, the  judgment is  final only qua the accused who preferred the  appeal  or revision.   This is based not on any technical  doctrine  of res  judicata, for there is none in criminal cases,  but  on the general principle of finality of judgment.  In the first two  cases  there  can, after the judgment,  be  no  further application  by  the State for enhancement of  sentence  and therefore  no question of the application of section  439(6) can  arise.   In  the last case, i.e., in  case  of  summary dismissal  the Judgment not being final qua the  State,  the State  may apply for enhancement of sentence and if it  does the accused becomes entitled again to show cause against his conviction  also  by  reason of the  special  provisions  of section 439(6). Per BHAGWATI and IMAM JJ.-A Judgment pronounced by the  High Court in the exercise of its appellate or revisional 96 jurisdiction  after issue of a notice and a full hearing  in the presence of both the parties would certainly be  arrived at after due consideration of the evidence and all arguments and  would therefore be a final judgment and  such  judgment when  pronounced  would replace the judgment  of  the  lower court,  thus  constituting  the only final  judgment  to  be executed  in accordance with law by the court  below.   When however a petition of appeal presented by a convicted person from jail is summarily dismissed under s. 421 or a  revision application made by him is dismissed summarily or in  limine without hearing him or his pleader what the High Court  does in  such  a case is to refuse to entertain the  petition  of appeal  or the revision application and the order passed  by the High Court dismissed  or rejected" cannot be said to  be an  expression of the opinion of the court arrived at  after due consideration of the evidence and all the arguments. No  notice for enhancement of sentence can be issued by  the High Court when a judgment is pronounced by it after a  full hearing  in  the  presence of both  the  parties  either  in exercise  of its appellate or its  revisional  jurisdiction. Such notice for enhancement of sentence can be issued by  it either  suo motu or at the instance of an  interested  party when  the  judgment of the lower court subsists and  is  not replaced  by its own judgment given in the exercise  of  its appellate or revisional jurisdiction.  When the Judgment  of

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the lower court has been under its scrutiny on notice  being issued to the opposite party and on a full hearing  accorded to  both the parties notice for enhancement of sentence  can only  be  issued  by it before it  pronounces  its  judgment replacing that of the lower court.  When such hearing is  in progress it is incumbent upon the High Court or the opposite party to make up its mind before the judgment is  pronounced whether a notice for enhancement of sentence should issue to the accused. Case-law discussed.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 20 of 1954. Appeal  from the Judgment and Order dated the  26th  August, 1953,  of  the  Bombay  High  Court  in  Criminal   Revision Application No. 51 8 of 1953 arising out of the Judgment and Order  dated  the  9th  December,  1952,  of  the  Court  of Presidency Magistrate, Bombay, in Case No. 3442/P of 1952. S.   P. Verma, for the appellant. M.   C. Setalvad, Attorney-General for India (Porus A. Mehta and P. G. Gokhale, with him), for the respondent. 97 1955.  March 25.  The following Judgments were delivered. DAS J.-The appellant before us was on the 9th December, 1952 convicted by the Presidency Magistrate, 13th Court,  Bombay, of an offence under section 66(b) of the Bombay  Prohibition Act (Act XXV of 1949) and sentenced to undergo  imprisonment till the rising of the Court and to pay a fine of Rs. 250 or to  undergo  rigorous  imprisonment  for  one  month.    The appellant   preferred  an  appeal  to  the  High  Court   of Judicature at Bombay but his appeal was summarily  dismissed by  a Bench of that Court on the 19th January  1953.   After the  dismissal  of that appeal the State of  Bombay  made  a Criminal   Revision  application  to  the  High  Court   for enhancement  of the sentence.  Notice having been issued  to the  appellant under section 439(2) of the Code of  Criminal Procedure,  learned  counsel for the appellant  claimed  the appellant’s right under section 439(6) to show cause against his  conviction.  This the High Court did not permit him  to do.  The High Court, however, did not think fit to make  any order  for enhancement of sentence.  On an application  made on  behalf  of the appellant the High Court  of  Bombay  has given  leave  to the appellant to appeal to this  Court  and granted a certificate of fitness under article 134(1) (c) of the Constitution of India. The question for our consideration in this appeal is whether the  summary  dismissal  of  the  appeal  preferred  by  the appellant  precluded  him  from  taking  advantage  of   the provisions  of  section  439(6)  of  the  Code  of  Criminal Procedure when he was subsequently called upon to show cause why  the sentence imposed upon him should not  be  enhanced. The question depends for its answer upon a true construction of section 439.  That section, so far as it is material  for our present purpose, reads as follows:- "439. (1) In the case of any proceeding the record of  which has been called for by itself or which has been reported for orders, or which otherwise comes to its knowledge, the  High Court may, in its discre- 13 98 tion,  exercise  any of the powers conferred on a  Court  of Appeal  by sections 423, 426) 427 and 428 or on a  Court  by

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section  338,  and may enhance the sentence;  and  when  the Judges  composing the Court of Revision are equally  divided in  opinion,  the case shall be disposed of  in  the  manner provided by section 429. (2)  No  order  under  this section shall  be  made  to  the prejudice of the accused unless he has had an opportunity of being  heard  either  personally or by pleader  in  his  own defence. (3)...................................................................... ..... (4)...................................................................... ...... (5)  Where  under this Code an appeal lies and no appeal  is brought,  no  proceedings  by  way  of  revision  shall   be entertained  at  the instance of the party  who  could  have appealed. (6)Notwithstanding  anything contained in  this  section,any convicted person to whom an opportunity has been given under sub-section (2) of showing cause why his sentence should not be  enhanced  shall, in showing cause, be entitled  also  to show cause against his conviction". For  a correct appreciation of the real meaning, import  and scope of the provisions of sub-section (6) of section 439 it will be necessary to bear in mind its historical background. In England there is no provision for an appeal by the  Crown either against an order of acquittal or for the  enhancement of  sentence.   There the person convicted has  a  right  of appeal both against his conviction and the sentence  imposed upon him.  Under the English criminal procedure,  therefore, the  question of enhancement of sentence only  comes  before the Court of Criminal Appeal when there is an appeal by  the convicted accused.  In this country the provisions  relating to  the  Court’s  power  of  enhancement  of  sentence  have undergone radical changes from time to time.  Section 407 of the  Code of Criminal Procedure, 1861 prohibited any  appeal from  acquittal.  Express power was given to  the  appellate Court to reduce the sentence (sections 425 and 426) and like power  was given to the Sudder Court as a Court of  revision (sections 405 and 406). I find no provision 99 in  that  Code authorising the Sudder Court to  enhance  the sentence.  The Code of Criminal Procedure of 1872,  however, by  section 272 permitted the Government to file  an  appeal from  acquittal.   This was repeated in section 417  of  the Code of 1882 which corresponds to section 417 of the present Code.  Section 280 of the Code of 1872 expressly  authorised all appellate Courts to enhance the sentence.  This power of enhancement,  however,  was taken away  from  the  appellate Courts by section 423 of the Code of 1882 now reproduced  in section  423 of the present Code and was vested in the  High Court under section 439 of the Code of 1882 to be applied in exercise  of its revisional power.  This has been  continued in our present section 439.  This shows that the Legislature thought  that this extraordinary power should  be  exercised only by the High Court and no other Court.  A practice, how- ever,  appears  to  have grown up that in  cases  coming  up before  it  for  enhancement  of  sentence  the  High  Court accepted  the  conviction  as conclusive  and  proceeded  to consider  the  question of enhancement of sentence  on  that basis. (See Emperor v. Chinto Bhairava (1)).  Then came  Act XVIII of 1923 which, by section 119, amended section 439  by adding the present sub-section (6) and also amended  section 369 by substituting the words "save as otherwise provided by this  Code or by any other law for the time being in  force, or,  in  the  case  of a High  Court  established  by  Royal

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Charter, by the Letters Patent of such High Court, no Court" for the words "No Court other than a High Court" with  which the   section  formerly  opened.   The  results   of   these amendments  were  (i) to make the judgment or order  of  the High  Court  passed  in exercise of  its  original  criminal jurisdiction final which it was not under section 369 as  it originally  stood and to make this finality subject  to  the other provisions of the Code or of the Letters Patent of the High  Court  and (ii) to nullify the  practice  referred  to above and to give a statutory right to an accused person who was threatened with the risk of having the sentence  imposed on him by the trial Court or the lower appel- (1)  [1908] I.L.R. 32 Bom. 162. 100 late  Court  enhanced by the High Court in exercise  of  its revisional  jurisdiction suo motu or at the instance of  the State  or in exceptional cases even of any other  interested person.   Sub-section  (6), therefore, confers a new  and  a very valuable right on the subject which is designed to be a safeguard  against  the  State or  other  interested  person making  frivolous  revision application for  enhancement  of sentence.  The State or the person interested must, if  they ask for an enhancement of sentence, be prepared to face  the risk  of the accused being altogether acquitted.  It is  the price  or quid pro quo which the State or  other  interested person must be prepared to pay for the right or privilege of making  an  application for enhancement  of  sentence.   The language  used in sub-section (6) does not, in terms,  place any  fetter  on the right conferred by it  on  the  accused. This  new  right  is  not expressed  to  be  conditioned  or controlled  by anything that may have happened prior to  the revision  application under sub-section (1) for  enhancement of  sentence.  The section quite clearly says that  whenever there is an application for enhancement of sentence a notice must  issue under sub-section (2) to the accused  person  to show  cause and whenever such notice is issued  the  accused person must, under sub-section (6), be given an opportunity, in  showing  cause against enhancement, also to  show  cause against  his conviction.  The sub-section does not say  that he will have this right to show cause against his conviction only  if he has not already done so.  If the accused  person appealed against his conviction and sentence to an appellate Court  not being a High Court and lost that appeal  after  a full  hearing  in the -presence of his opponent it  must  be conceded  that  he  has had an  opportunity  to  show  cause against  his  conviction but nobody will contend  that  that circumstance   will   prevent  him   from   having   another opportunity  of  showing cause against  his  conviction  and sentence  either by a substantive application  initiated  by himself under sub-section (1) or by way of defending himself when  the  State or other interested person applies  to  the High Court in revision under section 439(1) for  enhancement of 101 sentence and a notice is issued on him under section 439(2). (See  Kala  v.  Emperor(1)).  Enhancement  of  sentence   is undoubtedly an encroachment upon the liberty of the  subject and  a  very serious matter for an accused  person  and  the Legislature may quite properly have thought that whenever an accused  person  is sought to be laid open to  the  risk  of having  his sentence enhanced, the question of the  legality and propriety of his conviction should be reexamined by  the High Court in the context of this new jeopardy, irrespective of   anything  that  might  have  happened  prior   to   the application  for enhancement of sentence and the issuing  of

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the notice on the accused to show cause.  Indeed, there  is, in  sub-section  (6) itself, an indication in  that  behalf. This  sub-section  is to operate  "notwithstanding  anything contained in this section".  In some of the decisions  (e.g. Emperor  v. Jorabhai(2), Crown v. Dhanna Lal(3), Emperor  v. Inderchand(4) and King v. Nga Ba Saing(5)) it has been  said that the non obstante clause refers only to sub-section (5). I  find it difficult to accept this limited construction  as correct.   Sub-section  (5) only says that where  an  appeal lies  and  no appeal is brought, no proceedings  by  way  of revision  shall be entertained at the instance of the  party who could have appealed.  The idea is that if a person has a right of appeal he must first pursue that remedy.  In  other words,  sub-section  (5)  is  a  disabling  provision.    By providing  that no proceedings by way of revision  shall  be entertained at the instance of a person who, having a  right of  appeal,  does not avail himself of it,  the  sub-section precludes  such a person from initiating proceedings by  way of revision.  When the accused person under sub-section  (6) shows  cause against his conviction he himself initiates  no proceedings  but  only  exercises the right  to  show  cause against  his  conviction  which  is  given  to  him  because somebody else has taken proceedings against him for enhance- ment  and a notice has been issued on him  under  subsection (2).  In such a situation the accused person (1)  A.I.R. 1929 Lah. 584. (2)  [1926] I.L.R. 50 Bom. 785. (3)  [1929] I.L.R. 10 Lah. 241. (4)  A.I.R. 1934 Bom. 471. (5) A.I.R. 1939 Rang. 392, 102 is  on  the defensive and the act of showing  cause  against proceedings initiated against him cannot properly be said to be,  proceedings "at his instance" which the High Court,  by sub-section  (5),  is enjoined not to  entertain.   Strictly speaking sub-section (6) needs no exemption from sub-section (5).   In  any event and assuming that the  act  of  showing cause against his conviction under sub-section (6) is tanta- mount  to  an application in revision initiated by  him  and such application is saved from the operation of  sub-section (5)  by the non obstante clause of sub-section (6) 1 do  not see  any reason for holding that the non obstante clause  of sub-section  (6)  is concerned only  with  sub-section  (5). Although in showing cause against his conviction under  sub- section (6) the accused person can urge all that he could do in  an  appeal, if not more, this act of showing  cause  is, nevertheless, in form at least, a continuation and indeed an integral  part of the proceedings in revision  initiated  by the  Court suo motu or by the State or any other  interested party.  The general rule is that the exercise of  revisional power  is  entirely a matter of discretion which  is  to  be exercised  by the High Court not capriciously but  on  sound judicial  principles.  Indeed, sub-section (1)  itself  lays stress  on this aspect of the matter by the use  therein  of the words "in its discretion".  The non obstante clause  may well  have  been designed to emphasise that  the  new  right conferred  by sub-section (6) is a matter of right and  does not rest entirely on mere discretion of the Court.   Further the non obstante clause has a special significance even in a case   where   the  accused  person  has  already   had   an opportunity, by means of an appeal or revision filed by  him in  the  High Court, to show cause against  his  conviction. Under  sub-section (1) there can be a revision only  of  the judgment  or order of Criminal Courts inferior to  the  High Court and it does not sanction any revision of the  judgment

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or  order  of the High Court itself.  Therefore,  where  the accused person has unsuccessfully challenged the legality or propriety  of  his  conviction  in  an  appeal  or  revision application made by him before the High 103 Court  he  cannot again initiate a  substantive  application before  the High Court under section 439(1) of the  Code  to re-examine  his conviction or sentence, for that will be  to ask the Court to revise its own previous judgment or  order, which  the High Court cannot do under section  439(1).   But suppose  that  the  dismissal  of  the  appeal  or  revision application  made  by  the  accused  takes  place  in   such circumstances  that it still leaves it open to the State  or other interested person to apply in revision for enhancement of  the sentence and proceedings are initiated by the  Court or  the  State  for enhancement of  sentence  under  section 439(1)  and  notice is issued on the accused  under  section 439(2), there is nothing in subsection (6) which, in  terms, prevents the accused, in that situation, to again show cause against his conviction and sentence.  The only argument that may, in those circumstances, be advanced with some semblance of  plausibility is that to let the accused person to  again challenge  his conviction or sentence under sub-section  (6) is  to cut across the provisions of sub-section (1)  and  in effect to permit the accused to ask the High Court to revise its  previous  order, although  no  substantive  application could be initiated by him under sub-section (I). It may well be that the non obstante clause in sub-section (6) was  also designed to negative such an argument.  Although  ordinarily no  substantive application can be initiated by  an  accused person,  whose appeal or revision application has once  been dismissed by the -High Court. for revision or review of that order  of dismissal, I can find no difficulty in  construing and reading section 439(6) as giving to the accused  person, who is faced with the risk of having his sentence  enhanced, a second opportunity to do what he had previously failed  to do.  In other words, I see no incongruity in the Legislature giving  a new right of revision to the accused person  as  a weapon of defence in the context of a new offensive taken by the  State  against him.  Even if the act of  showing  cause under sub-section (6) is to be regarded as a revision, there was  nothing to prevent the Legislature, in the interest  of the liberty of the 104 subject,  to provide for a limited right of revision of  the judgment or decision or order of the High Court itself.   In my judgment that is what the Legislature has done by  adding sub-section (6) to section 439 and the non- obstante  clause is  intended  to  meet  and repel  the  objection  that  may possibly  have  been  taken on the score  that,  under  sub- section  (1), there can be no revision by the High Court  of its own order.  In my opinion, so long as proceedings may be taken  against  the accused person for  enhancement  of  his sentence and so long as notice may be issued on him to  show cause against enhancement, so long must he have, in  showing cause against enhancement of sentence, the right, under sub- section   (6),  to  show  cause  against   his   conviction, irrespective of anything that may have happened  previously. That  is how I read the sub-section.  Indeed, in Emperor  v. Mangal  Naran(1) McLeod, C. J., went further  and  expressed the  view  that if, after an appeal had been  heard  on  its merits  and  dismissed,  a notice to  enhance  sentence  was issued, the accused would still have the right to show cause against his conviction although any attempt to set aside his conviction  would  not  have much chance  of  success.   For

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reasons  to be stated hereafter I would rather say  that  in such a situation no application for enhancement would lie at all  and  that consequently no question would arise  of  the accused  person exercising his right under sub-section  (6). This  aspect of the matter that I am trying to indicate  and emphasise does not appear to have been sufficiently adverted to in the subsequent decisions of the different High  Courts in  India  except  in one decision of a Full  Bench  of  the Lahore  High Court.  It will be convenient at this stage  to refer to those decisions. In  Emperor  v.  Jorabhai (supra)  the  accused  person  was convicted by the Sessions Judge.  He preferred an appeal  to the  High Court and a Bench of the High Court dismissed  the appeal  on  merits after full hearing of  both  sides  after notice  of appeal had been served on the State.   After  the delivery of the judgment an oral application was made to the Bench by (1)  [1924] I.L.R. 49 Bom. 450. 105 the Government pleader for the enhancement of the  sentence. Notice was issued to the accused under section 439(2) of the Code.  The accused claimed the right, under sub-section  (6) to  challenge  his conviction.  It was held by  Fawcett  and Madgavkar,  JJ.,  that section 439(6) did not  justify  what would be tantamount to a rehearing of the appeal on merits. In  the  case  of  Ramlakhan  Chaudhury  v.  Emperor(1)  the accused’s appeal had been previously dismissed after a  full hearing  and following the decision in Emperor  v.  Jorabhai (supra)  it  was  held that the  accused  could  not,  under section 439(6), challenge the correctness of his  conviction for the second time while showing cause against  enhancement of sentence.  The same principle has been extended to  cases where  the appeal of the accused person had been  previously dismissed by the High Court summarily but after hearing  the accused or his advocate. (See Emperor v. Batubai(2), Emperor v. Haji Khanhamoo(3), King v. Nga Ba Saing (supra),  Emperor v.  Naubat(4)  ),  to cases where the  jail  appeal  of  the accused  had  previously been  dismissed  summarily  without hearing  the  accused or his advocate (see Emperor  v.  Koya Partab(5), Emperor v. Abdul Qayum(6), Ramchand v. Hiralal(7) and  State v. Bhavani Shankar(8)) and to cases of  dismissal of revision petition filed by the accused after hearing  the advocate  (see In re Saiyed Anif Sahib(1), Emperor  v.  Sher Singh("), Crown v. Dhanna Lal (supra) ) and also to the case of  an  accused whose revision petition has  been  summarily dismissed (see Emperor v.. Inderchand (supra)).  It has been held  that  for the purposes of section 439(6) it  makes  no difference  whether the judgment or order of  dismissal  was made by the High Court in appeal or in revision, or  whether the  appeal or revision was dismissed summarily or  after  a full  hearing  on notice to the State  or  other  interested party and that any dismissal of the appeal or (1)  [1931] I.L.R. 10 Pat. 872.(6) A.I.R. 1933 All. 485. (2)  A.I.R. 1927 Bom. 666.(7) A.I.R. 1942 All. 339. (3)  A.I.R. 1936 Sind 233.(8) I.L.R. [1952] 2 Raj. 716. (4)  I.L.R [1945] All. 527.   (9) A.I.A. 1925 Mad. 993. (5)  [1930] I.L.R. 54 Bom. 822.(10) [1927] I.L.R. 8 Lah. 521, 14 106 revision  prevents the accused person from availing  himself of  the benefit of section 439(6).  In two cases Emperor  v. Lukman(1) and Emperor v. Shidoo(2) the Sind Court took up an intermediate  position that the accused person whose  appeal had been dismissed summarily or after full hearing could not

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challenge  his conviction for the second time except to  the extent that the conviction was not founded on legal evidence or was manifestly erroneous.  In other words, lie could only go up to what was ordinarily permitted in a revision.  These two decisions appear to me, with respect,to be illogical and I need say no more about them.     In the other cases  noted above it has been quite  definitely  held that  the  accused person  whose  appeal  or  revision  application  has   been previously dismissed, summarily or after a full hearing,  is not  entitled,  when  called  upon to  show  cause  why  the sentence should not be enhanced, to question the correctness of his conviction for the second time.  In other words,  the previous  dismissal,  according to these decisions.,  is  an adjudication  by  the High Court of the correctness  of  his conviction  and  on the principle of  finality  of  judgment embodied  in  sections 369 and 430 of the Code  of  Criminal Procedure  that  adjudication cannot be called  in  question under  section 439(6).  It has been pointed out  in  several cases  (Crown v. Dhanna Lal (supra), Emperor  v.  Inderchand (supra)  and King v. Nga Ba Saing (supra))  that  subsection (6) opens with the words "notwithstanding anything contained in  this  section" and not with the  words  "notwithstanding anything contained in this Code" and from this the inference has  been  drawn that while the sub-section -is  to  operate notwithstanding the provisions of sub-section (5) it  cannot override  the other provisions of the Code, and,  therefore, the operation of sub-section (6) is conditioned or  control- led  by  the principle of finality of judgment  embodied  in section  369  and  section 430.  Some  learned  Judges  have expressed  the  view (see In re Saiyed Anif  Sahib  (supra), Crown v. Dhanna Lal (supra)) that the words (’unless he  has already done so" are to be read in sec- (1) A.I.R. 1927 Sind 39. (2) A.I.R. 1929 Sind 26. 107 tion 439(6), for this is to be implied from the  presumption of  finality.   In  some cases (see Emperor  v.  Sher  Singh (supra) and Ram Lakhan v. Emperor (supra)) the decision  has been  placed also oil the ground of the inherent  incapacity of one Judge of the High Court to reconsider the decision of another  Judge  of that Court.  It is necessary  to  examine these grounds a little closely to ascertain their validity. In  order to appreciate the true meaning and exact scope  of sections  369 and 430 on which the argument of  finality  of judgment  is  founded it is necessary to keep  in  view  the general scheme of the Code.  Part VI of the Code deals  with "Proceedings  in  Prosecutions".  Chapter XV lays  down  the jurisdiction of the Criminal Courts in Inquiries and Trials. I  pass over Chapters XVI to XVIII.  Chapter XIX  prescribes rules  for the framing and joinder of charges.  Chapters  XX to XXIII deal with different kinds of trials, e.g., trial of summons  cases,  warrant cases, summary  trials  and  trials before  High  Courts and Courts of  Session.   Chapter  XXIV contains  general  provisions as to  Inquiries  and  Trials. Mode  of taking and recording evidence is prescribed by  the sections grouped together in Chapter XXV. then comes Chapter XXVI which is headed "Of the Judgment".  Section 369 is  one of  the  sections included in this chapter.   Chapter  XXVII provides  for  the  submission of death  sentences  for  the confirmation  of  the  High Court.  Rules  relating  to  the execution,  suspension,  remission and commutations  of  the sentences are to be found in Chapters XXVIII and XXIX.  Part VI  ends  with  Chapter XXX which is not  material  for  our present purpose.  Part VII deals with "Appeal, Reference and Revision".   Chapter XXXI is concerned with Appeals  and  we

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find  section 430 in this chapter.  Chapter  XXXII  provides for  reference  and revision, section 439 being one  of  the sections  included in this chapter.  In view of  the  scheme summarised  above there can be no manner of doubt  that  the provisions  of  the sections collected in Chapter  XXVI  are concerned  with  judgments pronounced by  the  trial  Court. This  conclusion is certainly reinforced by the language  of some 108 of these sections.  Thus section 366 which is the very first section  in  this chapter refers to "The judgment  in  every trial  in  any  Criminal Court  of  original  jurisdiction". Section  367 provides what must be contained in "every  such judgment",  that  is to say judgment in an  original  trial. Section 369 runs as follows: "369.   Court  not  to  alter  Judgment.-Save  as  otherwise provided by this Code or by any other law for the time being in  force  or, "in the case of a High Court by  the  Letters Patent or other instrument constituting such High Court", no Court,  when  it  has signed its judgment,  shall  alter  or review the same, except to correct a clerical error". The  opening  words  "save as  otherwise  provided  by  this Code........  constituting  such High Court" were  added  by section  119  of  the Amending Act XVIII of  1923  and  were further  adapted by Adaptation of Laws Order,  1950.   There can  be  no  question that the  finality  embodied  in  this section  is only in relation to the Court  which  pronounces the judgment, for it forbids the Court, after it has  signed its judgment, to alter or review the same.  In other  words, after pronouncing the judgment the Court that pronounces  it becomes  functus officio.  There is indication in  the  Code itself that the purpose of section 369 is not to prescribe a general  rule of finality of all judgments of  all  Criminal Courts but is only to prescribe finality for the judgment of the  trial  Court so far as the trial  Court  is  concerned. That  this  section  does  not,. by  itself,  apply  to  the judgment of an appellate Court is quite obvious, because  if it  did,  there would have been no  necessity  for  enacting section  424  specifically  making the  rules  contained  in Chapter XXVI, which includes section 369, applicable to  the judgment  of any appellate Court other than High Court,  nor for again prescribing by section 430 a rule of finality  for judgments  and  orders passed by an  appellate  Court.   It, therefore,  follows that while, subject to the other  provi- sions  of  the  Code or any other law  and  of  the  Letters Patent,  the  finality  of  section  369  attaches  to   the judgments pronounced by all trial Courts including the  High Court in the exercise of its original criminal                             109 jurisdiction it certainly has no bearing on the question  of finality  of  appellate  judgments  which  is   specifically provided  by  section 430 of the Code.  Again, the  rule  of finality embodied in section 369 cannot, in terms, apply  to the  orders  made  by  the High Court  in  exercise  of  its revisional  jurisdiction, for section 442 of the Code  which requires  the  result  of the  revision  proceedings  to  be certified  to  the Court by which the finding,  sentence  or order  revised  was recorded or passed refers to it  as  its "decision  or order" and not "judgment".  It is  significant that  section 425 which requires the result of appeal to  be certified  to the lower Court refers to it as its  "judgment or order".  All these considerations herein alluded to quite clearly establish that section 369 cannot in any manner con- trol  section 439(6).  In any case, section 369 is  "subject to the other provisions of the Code" and I see no reason why

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section  439(6) should not be regarded as one of such  other provisions.  It cannot be overlooked that the words "subject to  the other provisions of the Code, etc." were  introduced into  section  369 at the same time as sub-section  (6)  was added to section 439.  As I read the new sub-section, it  is a  substantive statutory right conferred on the subject  and full  effect should be given to it unless there is  any  in- superable difficulty in the way of doing so.  If section 369 were  susceptible of as wide a meaning as is read into  it,, namely,  that  it applies to all judgments  of  all  Courts, original,  appellate or revisional, I would, in  that  case, bold that that meaning must be taken as cut down, by  reason of  the words "subject to the other provisions of the  Code, etc."  by  the mandatory provision&-of section  439(6).   In other  words,  section 439(6) must be  read  as  controlling section  369  rather  than the other  way  about.   Finally, section  369  being subject to the other provisions  of  the Code  must  be  read as subject to section 430  and  as  the finality enshrined in the latter section does not attach  to decisions  or orders made in revision by reason  of  Chapter XXXII being expressly excepted from its operation, the  rule of  finality embodied in section 369, even if it be as  wide as it is contended to be, 110 cannot affect cases provided for in Chapter XXXII. I  now  pass on to section 430 which is also  relied  on  as furnishing  a  principle of finality which  is  supposed  to control  the operation of section 439 6).  Section  430,  in terms,  applies  to  "judgments and  orders"  passed  by  an appellate  Court.   It has no application to  "decisions  or orders"  made  by the High Court in revision.  It  has  been contended that the exception made in section 430 in  respect of  cases  provided for in Chapter XXXII  only  exempts  the judgments or orders of an appellate Court other than a  High Court  from  the rule of finality embodied in  section  430, because  they  are made revisable by the  High  Court  under section  439(1).   Section 439(1) does  not  contemplate  or permit  judgments  or  orders made -by  the  High  Court  in exercise of its original or appellate criminal  jurisdiction to  be  revised  by  the High  Court.   As,  therefore,  the appellate  judgments  or orders of the  High  Court  cannot, under  section  439(1), be made the  subject-matter  of  any revision application, such appellate judgments or orders did not  fall within the exception made in section 430 and  were accordingly  left subject to the rule of  finality  embodied therein.  Two answers occur to me.  If the effect of the new subsection (6), as I have already explained, is to confer  a new  right  on an accused  person  notwithstanding  anything contained in section 439(1), that is to say, if  sub-section (6)  is  read,  as  I think it should  be,  as  a  statutory provision expressly making the judgment or decision or order of  the  High Court passed in exercise of its  appellate  or revisional  jurisdiction  subject, for the  purpose  of  the protection of an accused person whose appeal or revision had been  previously  dismissed, to re-examination by  the  High Court  only  as and when he is subsequently  faced  with  an application for enhancement of sentence, then such judgment, decision  or  order of the High Court does, as a  result  of section 439(6), become the subject-matter of a case provided for in Chapter XXXII of the Code.  In other words, the scope of  Chapter  XXXII having been enlarged by the  addition  of sub-section (6)     to   section  439,  the  scope  of   the exception to sec-                           111 tion  430 must also stand enlarged so as to  include  within

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the exception whatever, after the amendment of section  439, may  come  within Chapter XXXII and,  therefore,  cases  now coming  within  that Chapter must stand free from  the  rule finality embodied in section 430.  The other answer is to be found  in two of the decisions of the Allahabad High  Court, namely  Emperor  v.  Abdul  Qayum  (supra)  and  Ram   Chand Hiralal(1)  where it has been field that section 430  by  V. its own terms  saves the revisional power of the High  Court to  enhance the sentence.  In each of these cases  the  jail appeal  filed by the accused had been dismissed by the  High Court  summarily.   If  the rule of  finality  of  appellate judgments  does not attach to the summary dismissal  of  the jail  appeal  by the High Court so as to prevent  the  State from invoking its revisional power to enhance the  sentence, surely  the  accused’s  right  to  show  cause  against  his conviction under section 439 (6), which is consequential and arises  only upon a rule for enhancement being issued  under section  439(2) and is, therefore, a part of the  revisional proceedings  for enhancement of sentence, must, on a  parity of  reasoning  be  also  free from  the  same  principle  of finality.   It,  therefore, follows that section  434(6)  is not,  in  terms, controlled by section 369 or  section  430. Whether  the  sub-section  is  controlled  by  the   general principle of finality of judgments and if so to what  extent are different questions which will be discussed later. The  second  ground  on which some of  the  decisions  rest, namely,  the  inherent incapacity of one Judge of  the  High Court  to  reconsider the decision of another Judge  of  the High Court may easily be disposed of The theory of  inherent incapacity must give way to the statutory capacity conferred by  section  439(6).  If on a true  construction  a  statute states, expressly or by necessary intendment, that one Judge or  one  Bench shall have jurisdiction and power  to  decide something,  the theory of inherent incapacity of such  Judge or  Bench cannot be invoked to prevent the exercise of  such jurisdiction and power merely on (1)  A.I.R. 1942 All. 339. 112 the  ground  that the decision which may be  arrived  at  in exercise  of this new jurisdiction or power may run  counter to  the  previous decision arrived at by  another  Judge  or Bench  in exercise of another jurisdiction or power.  I  see no reason why section 439(6) may not be read as a  provision which,  by necessary implication, enables the High Court  to re-examine  its  own  previous order  on  the  happening  of certain  contingencies,  namely, upon  the  accused  person, whose  appeal  or revision has been dismissed,  being  faced with  the risk of having his sentence enhanced and a  notice being issued to him for enhancement. To reinforce the argument that section 439(6) is  controlled by  sections 369 and 430 reference has been made to  section 423(2)  and  it  has been contended,  on  the  authority  of various decisions, that the right given by section 439(6) is not absolute but is controlled by the provisions of  section 423(2)  which  lay down some limitations in  the  matter  of appeal from convictions in a jury trial.  Even on that topic some  learned Judges have taken divergent views.  It is  not necessary, on this occasion, to express any opinion on  that question  and I reserve my right to examine the position  as and  when an occasion may arise in future.  Even if  section 439(6)  is controlled by section 423(2),  that  circumstance certainly   does   not   indicate  when   and   under   what circumstances the right under section 439(6) may be  availed of.   In any case, that consideration has no bearing on  the argument of finality of judgments sought to be founded

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on sections 369 and 430. It will be convenient at this stage to refer to the decision of a Full Bench of the Lahore High Court in Emperor v.  Atta Mohammad(1)  and  to deal with the argument founded  on  and developed from some of the reasonings adopted by the learned Judges  constituting  that  Full Bench.  In  that  case  the revision  application of the accused had been  dismissed  in limine  by the High Court.  Subsequently the  Crown  applied for  enhancement  of sentence.  Notice  having  been  issued under sub-section (2) of section 439 the accused (1)  [1943] I.L.R. 25 Lah. 391. 113 person  claimed  the right, under  sub-section(6),  to  show cause  against his conviction in spite of the fact that  his revision  application had been dismissed.  The Advocate  for the  Crown  relied  on  the  cases  referred  to  above  and contended  that  the  order of  dismissal  of  the  revision application  by  the  High Court was final  as  regards  the correctness  of  the conviction, that that order  could  not again be revised by the High Court, that the accused was  no longer entitled to challenge his conviction and that it made no difference that his revision petition had been  dismissed in limine.  The Full Bench overruled the earlier decision of the  Court in Crown v. Dhanna Lal (supra) and held that  the accused  was, in the circumstances of the case, entitled  to show cause against his conviction, notwithstanding the  fact that  his  application for revision had  been  dismissed  in limine.   The reasoning adopted by Blacker, J., was  shortly as follows: That an order dismissing a revision petition  in limine  is  an order made under section 435  and  not  under section  439;  that  such an order is not  a  judgment  and, therefore, the principle of finality embodied in section 369 does  not apply to such an order, because such  a  dismissal only meant that the Judge saw no adequate grounds  disclosed in  the  petition  or  on  the  face  of  the  judgment  for proceeding any further; that, in the picturesque language of the learned Judge, in such a dismissal "there is no  finding or decision unless it can be called a decision to decide  to come to no decision"; that the jurisdiction exercised by the Court  under section 439(6) was appellate  jurisdiction  and that  an order of acquittal thereunder did not amount  to  a review  of  an  order of dismissal under  section  435;  and finally  that if the order under section 435 was a  judgment or  if  an  order of acquittal under section  439(6)  was  a review  of  such  judgment, such review was  not  barred  by section 369, because of the saving provisions with which the section  begins.   Mahajan, J., as he then was, put  in  the forefront of his judgment the view that section 439(6) which was introduced by amendment in 1923 gave a new and unlimited right 15 114 to  the subject; that the Judge hearing the application  for enhancement  was  bound  to go into  the  facts  to  satisfy himself  as to the correctness of the conviction;  that  the exercise  of  revisional jurisdiction was a mere  matter  of favour  and  a  dismissal  in  limine  of  such  application amounted  only to a refusal to look into the record and  was in  no sense a judgment.  Ram Lall, J., did not deliver  any separate  judgment  but concurred generally with  the  other learned Judges. It  will  be noticed that this decision of the  Lahore  High Court  rests  mainly on two grounds, namely, (1) that  in  a dismissal  of a revision application in limine there  is  no finding or decision at all and that it is nothing more  than

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a refusal to send for the records or to look into the matter and  is,  therefore, not a judgment., and (2) that,  in  any case,  section  439(6) gives a new statutory  right  to  the accused person to challenge the legality or propriety of his conviction,  although his previous application for  revision of the order of the lower Court had been dismissed in limine and that such a review of that dismissal order is not barred by  section  369  because of the  saving  provision  at  the beginning  of  that  section.   The  Full  Bench   expressly declined  to  express  any  opinion  as  to  the  effect  of dismissal  of  an appeal on the right given  by  sub-section (6).   The principle of the first ground of the Lahore  Full Bench decision has, however, been extended by the  Rajasthan High  Court  in’ The State v. Bhawani Shankar (supra)  to  a case  where the respondent’s jail appeal had been  summarily dismissed.   According to Wanchoo, C.J., the accused,  whose jail  appeal had been dismissed summarily, was in  the  same position  as the accused, whose revision petition  had  been dismissed  in limine, for he too could not be said  to  have had an opportunity of showing cause against his  conviction. The  learned  Chief Justice, however, did not desire  to  go further  and  expressed  the view that  if  an  appeal  were dismissed  summarily  but  after hearing the  party  or  his pleader  the  accused  could  not claim  to  have  a  second opportunity  to  challenge  his  conviction  under   section 439(6),  because  in  that  case  he  had  been  heard  and, therefore, had had an oppor- 115 tunity to show cause against his conviction when his  appeal had been summarily dismissed. It  will be recalled that in Emperor v. Jorabhai supra)  and the  other cases which followed it it was said that for  the purposes of determining the applicability of section  439(6) it  made no difference in principle whether  the  proceeding filed by the accused which had been dismissed was an  appeal or a revision or whether the dismissal was summary or  after a  full  hearing and that in none of such  cases  could  the accused  person claim a second opportunity to  question  the legality  or  propriety  of  his  Conviction  when  he   was subsequently  called  upon to show cause  why  the  sentence passed  on him should not be enhanced.  In the  Lahore  Full Bench  case  and  the Rajasthan case  referred  to  above  a distinction  has,  however,  been  made  between  a  summary dismissal and a dismissal after a full hearing of the appeal or revision filed by the accused.  In my judgment there is a substantial  distinction  between these two  kinds  of  dis- missals  as  regards their effect on the rights  of  accused persons as I shall presently indicate. I am, however, unable to accept the argument adopted by  the Lahore  Full  Bench that a summary dismissal of  a  revision application  filed  by the accused must be  regarded  as  an order made under section 435 and not one under section  439, that such a summary dismissal is nothing more than a refusal on the part of the High Court to go further or to look  into the  application  and that in such a dismissal there  is  no finding or decision at all.  Far less am I able to accede to the  proposition that a summary dismissal of a  jail  appeal also stands on the same footing.  Sections 421, 435 and  439 undoubtedly  vest  a  very wide  discretion  in  the  Court. Discretion,  as  Lord  Halsbury, L.C.,  said,  in  Sharp  v. Wakefield(1), means sound discretion guided by law.  It must be governed by rules of reason and justice and not according to  private opinion; according to law and not by  humour  or caprice.   It must not be arbitrary, vague and fanciful  but must be legal and regular.  This discretion is given to the

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(1)  L.R. [1891] A.C. 173 at p. 179. 116 High Court for the purpose of dealing with and disposing  of the  proceeding brought before it and not for  not  deciding it.   The  primary  and paramount duty of the  Court  is  to decide  the  appeal or revision and it is  to  exercise  its discretion  in  so deciding it.  In deciding the  appeal  or revision  the High Court may choose which of its  powers  it will exercise if the circumstances of the case call for such exercise.   In  a  clear case, apparent on  the  grounds  of appeal  or revision or on the face of the judgment  appealed from  or sought to be revised it may come to the  conclusion that  the  case  has  no merit and does  not  call  for  the exercise  of any of its powers in which case it may  dismiss it  summarily.  If, however, it has any doubt, it  may  call for  the  record  or may admit it and issue  notice  to  the respondent  and  decide  it  after a  full  hearing  in  the presence of all parties.  But decide it must at one stage or the other.  The discretion conferred on the High Court  does not authorise it to say that it will not look at the  appeal or  the revision.  The court’s bounden duty is to look  into the  appeal  or  revision and decide  it,  although  in  the process  of  arriving  at  its decision  it  has  very  wide discretion.   When the Court summarily dismisses  an  appeal whether without hearing the accused or his pleader as in the case  of a jail appeal or after hearing the accused  or  his pleader  but before issuing any notice to the respondent  as in  an appeal presented by the accused or his  pleader,  the Court  does decide the appeal.  It is indeed a very  serious thing to say that sections 421, 435 or 439 give the Court  a discretion  not  to decide the appeal  or  revision  brought before it and I, for one, am not prepared to countenance and much less encourage such an idea.  In my judgment a  summary dismissal  of  an  appeal or revision does  involve  an  ad- judication  by  the High Court just as a dismissal  after  a full  hearing  does.   The  only  difference,  as  we  shall presently  see, is as to the respective, nature,  scope  and effect of the two adjudications. It  has  been  said  that when  an  appeal  or  revision  is dismissed  after  a  full  hearing by  the  High  Court  the judgment of the lower Court merges in the High Court 117 judgment  and the High Court judgment replaces the  judgment of  the lower Court and becomes the only operative  judgment but that when the appeal or revision is summarily  dismissed by the High Court there is, in such a dismissal, no  finding or  decision  which can replace the judgment  of  the  lower Court.  it is, therefore, said that there can be no  showing cause  against his conviction under sub-section (6)  in  the first  case,  for  it will involve a revision  of  the  High Court’s  decision but the position will be otherwise in  the second case where the dismissal was summary.  This  argument appears  to me to be untenable and fallacious.  Section  425 of  the  Code requires that whenever a case  is  decided  on appeal by the High Court under Chapter XXXI it must  certify its  judgment  or order to the Court by which  the  finding, sentence  or order appealed against was recorded  or  passed and that that Court shall thereupon make such orders as  are conformable  to the judgment or order of the High Court  and that,,  if  necessary,  the  record  shall  be  amended   in accordance  therewith.  Likewise, section 442 requires  that when  a  case  is revised under Chapter XXXII  by  the  High Court,  it  shall, in the manner provided  by  section  425, certify  its  decision or order to the Court  by  which  the finding,  sentence or order revised was recorded  or  passed

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and that that Court shall thereupon make such orders as  are conformable  to  the  decision so  certified  and  that,  if necessary,  the  record  shall  be  amended  in   accordance therewith.  This certificate is sent in every -case, whether the  appeal or revision is disposed of summarily or after  a full  hearing.  Where an appeal or revision is  disposed  of after a full hearing on notice to the respondent and allowed wholly  -or  in part it becomes ex facie  obvious  that  the judgment  appealed against or sought to be revised has  been altered  by  the judgment or decision of the High  Court  on appeal or revision and a note is made in the record of  this alteration.   But  when an appeal or revision  is  dismissed after  full hearing and the sentence is maintained there  is outwardly  no change in the record when the  certificate  is sent  by  the  High  Court  but  nevertheless  there  is  an adjudica- 118 tion by the High Court.  In the first case it is judgment of acquittal or reduction of sentence and in the second case it is  a judgment of conviction.  Likewise, when an  appeal  or revision  is summarily dismissed, such  dismissal  maintains the judgment or order of the lower Court and a note is  made of such dismissal in the record and in the eye of the law it is  the  judgment of the High Court that prevails.   To  the uninstructed  mind the change may be more easily  noticeable in  the  first  case  than in the other  two  cases  but  on principle  there is no difference.  I can see no reason  for holding  that there is a merger or replacement  of  judgment only in the first two cases and not in the last one.  In  my opinion,  it  makes no difference whether the  dismissal  is summary  or otherwise, and there is a judgment of  the  High Court in all the three cases. It  is,  at once urged that if the summary dismissal  of  an appeal  or  revision  is also a judgment then  the  rule  of finality  prescribed  by sections 369 and 430 will  at  once apply  to  it  and a cunning accused may by  putting  up  an obviously  untenable  appeal or revision  and  procuring  an order  of summary dismissal of it, prevent the State or  any other  interested  party  from  making  an  application  for enhancement of the sentence.  The apprehension, to my  mind, is  unfounded for reasons more than one.  When an appeal  or revision  is  filed  by an accused person he  sets  out  his grounds  in  detail,  challenging both  his  conviction  and sentence.  From the very nature of things he does not  raise any question of enhancement of the sentence.  At that  stage no  notice or rule having been issued the respondent is  not before the Court to raise the issue of enhancement.  So  the summary  dismissal only confirms the conviction and  decides that the Court sees no ground for reducing the sentence.  It is  in no sense a decision that the sentence should  not  be enhanced for that issue was not before the Court at all  and so  it  has been said, I think rightly,  in  several  cases, [e.g.  In re Syed Anif Sahib (supra)], Emperor  v.  Jorabhai (supra)  and Emperor v. Inderchand (supra)].  The  fact  the High Court simply dismisses the appeal or revision summarily without issuing the notice on 119 the  accused under section 439(2) for showing cause  against enhancement  is a clear indication that the High  Court  has not considered the question of enhancement.  It is true that the  rule of finality prescribed by section 430  applies  to the  appellate  judgment of the High Court, subject  to  the exception regarding cases falling within Chapter XXXII.   It is  also  true  that although the revisional  power  is  not expressly  or in terms controlled either by section  369  or

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section 430, the general principle of finality of  judgments attaches  to the decision or order of the High Court  passed in  exercise of its revisional powers.  But  this  finality, statutory  or  general,  extends only to  what  is  actually decided by the High Court and no further.  When an appeal or revision  by the accused is allowed after a full hearing  on notice to the respondent the conviction and sentence must be regarded  as having been put in issue and  finally  decided. When the accused person in the presence of the State  claims an  acquittal or reduction of his sentence, the State  ought then and there to apply for enhancement of sentence and  its failure  to do so cannot but be regarded as  abandonment  of the  claim.  The acceptance by the High Court of the  appeal or  revision  on notice to the respondent and after  a  full hearing  is,  therefore,  nothing less than  a  judgment  of acquittal  or a judgment for reduction of sentence.  On  the other hand, the dismissal by the High Court of an appeal  or revision after such a full hearing amounts to a judgment  of conviction.  In both cases the judgment is final as  regards both   the  accused  and  the  respondent  as  regards   the conviction  as  well  as the sentence in  all  its  aspects, namely,  reduction  or enhancement.  In  that  situation  no further  question of revision can arise at the  instance  of either  party.  There can be no further application  by  the accused  challenging  his conviction or sentence.   Nor  can there   be  any  further  application  by  the   State   for enhancement  of the sentence, for that question  could  have been and should have been raised when the accused person  in the  presence  of  the respondent prayed  for  acquittal  or reduction  of  sentence and not having then been  raised  it cannot be raised 120 subsequently and consequently no question can arise for  the exercise of right by the accused under section 439(6).  This result  is  brought about not by any technical  doctrine  of constructive  res  judicata  which  has  no  application  to criminal  cases but on the general principle of finality  of judgments.   The summary dismissal of an appeal or  revision by  the accused, with or without bearing him or his  pleader but  without issuing notice to the respondent is, so far  as the  accused  is  concerned, a judgment  of  conviction  and confirmation  of his sentence and he can no longer  initiate revision  petition against his conviction or sentence.   The judgment  or  decision is a final judgment qua  the  accused person,  for  otherwise  he could go  on  making  successive appeals  or revision applications which obviously he  cannot be  permitted  to  do.  But the State  or  other  interested person who has not been served with any notice of the appeal or revision cannot be precluded, by the summary dismissal of the   accused’s   appeal  or  revision,  from   asking   for enhancement,  for  in  that  situation  the  State  or   the complainant  not being present the question  of  enhancement was not in issue before the Court and the summary  dismissal cannot  be  regarded as an adjudication on the  question  of enhancement.  That question not having been put in issue and not  having  been decided by the High  Court,  the  finality attaching  to the summary dismissal as against  the  accused does  not  affect the position.  This, I apprehend,  is  the true distinction between a summary dismissal of an appeal or revision  and a dismissal of it after a full  bearing.   The cases  of  Emperor v. Jorabhai (supra) and the  other  cases following  it overlooked this vital distinction as also  its effect  on the new statutory right conferred on the  accused person  by  section 439(6) and they cannot  be  accepted  as correct  decisions.   In  those cases where  the  appeal  or

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revision  filed  by the accused had been dismissed  after  a full  hearing in the presence of the State and  where  there was  no application by the State or other  interested  party for  enhancement  of sentence during the  pendency  of  that appeal or revision it should have 121 been held that the dismissal must be regarded as a  judgment which  was  final as against both parties  on  both  points, conviction  and  sentence  and there  could  be  no  further application for the enhancement of sentence and consequently no  question of the accused having a further opportunity  of showing  cause against his conviction could arise.   In  the cases where the appeal or revision filed by the accused  had been  summarily dismissed without notice to the  respondent, it  should have been held that although such  dismissal  was final  as against the accused it did not preclude the  State or  the complainant, who was not a party to  the  dismissal, from  applying for enhancement of sentence and that as  soon as an application for enhancement was made subsequently  and a  notice was issued to the accused, the latter, faced  with the  risk  of having his sentence enhanced, at  once  became entitled, under section 439(6), in showing cause against the enhancement  of  sentence, also to show  cause  against  his conviction.   The Lahore Full Bench case has decided,  inter alia  that  while the dismissal of  the  accused’s  revision application  in  limine  does not  prevent  the  State  from subsequently  applying  for  enhancement  of  the  sentence, section 439(6) gives the accused a fresh right to  challenge his  conviction when a notice for enhancement is  issued  to him.   That  part of the decision may well be  sustained  on this ground as explained above but, with great respect, I do not agree with their view that the accused in that case  had the  second  right  because the  summary  dismissal  of  his revision was not a judgment at all or was not final even  as regards him.  The Rajasthan High Court’s decision in so  far as  it  extended the principle to the dismissal  of  a  jail appeal  without  hearing the accused or  his  pleader  under section  421  may  also be supported on the  ground  I  have mentioned.  A Bench of the Lahore High Court in The Crown v. Ghulam  Muhammad(1)  has  held  that  where  the   accused’s revision  application  bad been dismissed on notice  to  the respondent and after a full hearing and the State sub. (1)  Pak.  L.R. [1950] Lah. 803. 16 122 sequently  applied for enhancement of sentence, the  accused person could again show cause against his conviction.   With great  respect I think that the better reasoning would  have been  to say that such a dismissal of the revision  after  a full  hearing, was a judgment final against both parties  on both points of conviction and sentence and that as the State did  not,  during the pendency of that revision,  apply  for revision it had., after that dismissal which became a  final judgment, no right subsequently to apply for enhancement  of sentence  and  consequently no notice under  section  439(2) could  issue  and no question could arise  for  the  accused person asserting his right under section 439(6). For reasons discussed above I have to hold that the  summary dismissal  of the appeal filed by the appellant in the  High Court was a judgment of conviction by the High Court and was final so far as the appellant was concerned and he could not initiate any further revision application either against his conviction or for reduction of sentence after that dismissal but that it was not final so far as the State was  concerned and  the  State  was  entitled  to  apply  in  revision  for

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enhancement of sentence.  For reasons already stated I  must further  hold  that  as  soon  as  the  State  applied   for enhancement  and  a notice was issued on  the  appellant  he became entitled under section 439(6) to again challenge  his conviction.  As I have said this sub-section gives a new and valuable  weapon  of  defence to an accused  person  who  is placed  in  fresh  jeopardy  by  reason  of  an  enhancement application  having been filed against him and a  notice  to show  cause  having been issued to him.  I find  nothing  in sections  369 and 430 to cut down that right.  The  previous dismissal of his appeal had no bearing on the new  situation created   by   the   enhancement   application   which   the Legislature,  in  enacting  section  439(6),  may  well  and properly have thought to be sufficiently serious to  deserve and  require a thorough re-examination by the High Court  of the conviction itself in this new context.  There is nothing in  principle that I can see which should prevent that  sub- sec- 123 tion  from giving a fresh right to the accused whose  appeal or  revision has been summarily dismissed to defend  himself by challenging his conviction when a notice for  enhancement is issued to him. In  my judgment, for the reasons stated above,  this  appeal should be allowed and the matter should go back to the  High Court so that the State’s application for enhancement may be dealt  with according to law after giving the  appellant  an opportunity to show cause against his conviction. BHAGWATI  J.  delivered the Judgment of Bhagwati  and  Imam, JJ.-This  appeal on certificate under article  134(1)(c)  of the  Constitution  raises an important question  as  to  the right  of  a  convicted person to  show  cause  against  his conviction  while showing cause why his sentence should  not be  enhanced under section 439(6) of the Criminal  Procedure Code. The appellant was charged before the Presidency  Magistrate, 13th   Court,  Bombay  with  having  committed  an   offence punishable under section 66(b) of the Bombay Act XXV of 1949 inasmuch as he was found in possession of one bottle of  Mac Naughtons  Canadian  Whisky  (Foreign)  containing  8  drams valued  at  Rs.  20.   He  was  convicted  by  the   learned Presidency Magistrate and was sentenced to imprisonment till the  rising  of the Court and a fine of Rs. 250  in  default rigorous  imprisonment  for  one month.   He  presented  his petition of appeal to the High Court of Judicature at Bombay through  his advocate.  This petition of appeal was  however summarily  dismissed  by the High Court  after  hearing  the advocate  on the 19th January 1953.  On the 18th May 1953  a criminal  revision application for enhancement  of  sentence was  filed by the State and a rule was granted by the  Vaca- tion  Judge  on  the 12th June 1953.   This  rule  came  for hearing  and final disposal before a Division Bench  of  the High  Court  on  the 26th August 1953.   After  hearing  the Government Pleader in support of the rule the Court was  not satisfied that there was a case for enhancement of sentence. The  learned counsel for the Appellant then wanted to  argue for an acquittal 124 relying  upon  the  provisions  of  section  439(6)  of  the Criminal Procedure Code.  Relying however upon the decisions of  the  Bombay High Court in Emperor  v.  Jorabhai(1),  and Emperor   v.   Koya  Partab  (2)  ,  as  also   Emperor   v. Inderchand(3),  the Court did not allow the learned  counsel to  argue that the order of conviction itself could  not  be sustained.  The application for enhancement of sentence  was

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thereupon  dismissed  and  the  rule  was  discharged.   The appellant  applied for leave to appeal to this Court on  the 15th  October 1953.  The Division Bench of the  High  Court, hearing  the  application stated the point which  arose  for determination as under:- "Whether  a summary dismissal of an appeal preferred  by  an accused  person precludes him from taking advantage  of  the provisions of section 439(6) of the Criminal Procedure Code, when  he is subsequently called upon to show cause  why  the sentence imposed upon him should not be enhanced". It pointed out that the consistent view taken by the  Bombay High Court in this matter had been accepted by the Allahabad and  the  Patna  High Courts in  Emperor  v.  Naubat(4)  and Ramlakhan Chaudhury v. Emperor(1) but the view taken by  the Lahore High Court in Emperor v. Atta Muhammad(1), though not directly in point prima facie lent support to the contention urged   by  the  learned  counsel  for  the  Appellant.    A certificate  was therefore granted to the Appellant that  it was a fit case for appeal to this Court. It will be convenient at this stage to briefly indicate  the relevant sections of the Criminal Procedure Code which  will fall  to be considered.  Section 417 provides for an  appeal on behalf of the State Government to the High Court from  an original or appellate order of acquittal passed by any Court other  than a High Court.  Sections 419, 420, 421,  422  and 423  prescribe the procedure in cases of  appeals.   Section 419  deals  with  petitions  of  appeal  presented  by   the appellant  or his pleader and section 420 with petitions  of appeal (1)  [1926] I.L.R. 50 Bom. 783. (2)  [1930] 32 Bom.  L.R. 1286. (3)  [1934] 36 Bom.  L.R. 954. (4)  I.L.R. 1945 Allahabad 527. (5)  [1931] I.L.R 10 Patna 872. (6)  [1943] I.L.R. 25 Lahore 391 (F.B 125 presented  when  the  appellant is  in  jail.   Section  421 provides  for  summary  dismissal of these  appeals  if  the Appellate Court considers that there is no sufficient ground for  interfering,  save  that no  appeal  presented  by  the appellant  or  his  pleader is to be  dismissed  unless  the appellant or his pleader has had a reasonable opportunity of being heard in support of the same, and the Court might also before dismissing an appeal summarily call for the record of the case though not bound to do so.  If the Appellate  Court does  not dismiss the appeal summarily, notice of appeal  is to  be  given  to the appellant or his pleader  or  to  such officer as the State Government may appoint in this  behalf, under  section 422 and the powers of the Appellate Court  in dismissing the appeal are laid down in section 423, the only relevant provision for the present purpose being that in  an appeal  from a conviction the Appellate Court might with  or without  the  reduction  in sentence  and  with  or  without altering  the  finding  alter the  nature  of  the  sentence but..............................  not so as to enhance  the same.  Section 430 incorporates the rule as to the  finality of  the  Judgments and orders passed by an  Appellate  Court upon  appeal  except in cases provided for  in  section  417 which  relates  to appeals on behalf of  the  Government  in cases  of  acquittal  and Chapter  XXXII  which  relates  to reference and revision.  Section 435 deals with the exercise of  the  revisional powers inter alia by the High  Court  to call for the records of the inferior criminal courts for the purpose of satisfying itself as to the correctness, legality or  propriety of any finding, sentence or order recorded  or

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passed  and as to the regularity of any proceedings of  such inferior  Courts.  Section 438 provides for a  reference  by the  lower  Appellate Court to the High  Court  recommending that a sentence which has been imposed on a convicted person be  reversed  or  altered.  Section 439 with  which  we  are immediately concerned is couched in the following terms:- (1)In  the  case of any proceeding the record of  which  has been  called  for by itself or which has been  reported  for orders, or which otherwise comes to its 126 knowledge  the High Court may, in its  discretion,  exercise any of the powers conferred on a Court of Appeal by sections 423, 426, 427 and 428 or on a Court by section 338, and  may enhance  the  sentence; and when the  Judges  composing  the Court  of Revision are equally divided in opinion, the  case shall be disposed of in manner provided by section 429. (2)No  order  under  this  section  shall  be  made  to  the prejudice of the accused unless he has had an opportunity of being  heard  either  personally or by pleader  in  his  own defence.    (5)Where under this Code an appeal lies and no appeal  is brought,  no  proceedings  by  way  of  revision  shall   be entertained at the instance of the party who could have appealed. (6)Notwithstanding  anything contained in this section,  any convicted person to whom an opportunity has been given under sub-section (2) of showing cause why his sentence should not be  enhanced  shall, in showing cause, be entitled  also  to show cause against his conviction. Section  440  lays down that no party has any  right  to  be heard either personally or by pleader before any Court  when exercising its powers of revision provided however that  the Court may if it thinks fit, when exercising such powers hear any  party  either personally or by pleader and  nothing  in that section shall be deemed to affect section 439(2) above. A person convicted of an offence may file in the High  Court a  petition  of  appeal  or  an  application  for   revision challenging his conviction and the sentence passed upon him. The petition of appeal may be presented by him from jail  or may  be  presented  by him to the High Court  in  person  or through  his pleader.  An application for revision also  may be similarly presented by him to the High Court.  A petition of appeal presented by him from jail or presented by him  in person or through his pleader as aforesaid may be  summarily dismissed  by the High Court after perusing the same  if  it considers   that   there  is  no   sufficient   ground   for interfering, the latter after giving him or 127 his  pleader  a  reasonable opportunity of  being  heard  in support  of the same and in appropriate cases after  calling for  the record of the case.  A notice of appeal  may  issue only if the High Court does not dismiss the appeal summarily and in that event only there would be a full hearing of  the appeal in the presence of both the parties.  In the case  of an  application for revision also the same may be  dismissed summarily  and without even hearing the party personally  or by pleader.  If however the Court deems fit to issue  notice to  the opposite party there would be a full hearing in  the presence  of  both  the parties.   These  proceedings  would normally   be  concerned  with  the  question  whether   the conviction can be sustained and the sentence passed upon the convicted person be set aside or reduced.  There would be no question  here  of  the enhancement of  the  sentence.   The question  of  enhancement of the sentence would  only  arise when   the  High  Court  in  exercise  of   its   revisional

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jurisdiction.  under section 439(1) thought it necessary  to issue a notice for enhancement of sentence to the  convicted person.   Even  though the Court exercising  its  powers  of revision would not be bound to bear any party personally  or by  pleader  no  order under section  439(1)  enhancing  the sentence  could  be  made to the prejudice  of  the  accused unless  he  has  had an opportunity of  being  heard  either personally or by pleader in his own defence.  In that  event simultaneously with the opportunity given to him under  sub- section (2) of showing cause why his sentence should not  be enhanced he would be entitled in showing cause also to  show cause  against his conviction by virtue of the provision  of section 439(6). The exercise of this right of also showing cause against his conviction may arise in 4 different types of cases: (1)  Where  his  petition  of  appeal  has  been   summarily dismissed either without hearing him or after hearing him or his pleader as the case may be; (2)  When his appeal has been dismissed after a full hearing following  upon  the notice of appeal being  issued  to  the opposite party; 128 (3)When  his  application for revision  has  been  summarily dismissed  either without hearing, him or after hearing  him or his pleader as the case may be; and (4)Where  his  application for revision has  been  dismissed after  a full beating following upon a notice issued to  the opposite party. When  the  High  Court issues a notice  for  enhancement  of sentence  it is exercising its revisional  jurisdiction  and the question that arises for consideration is whether in one or  more of the cases above referred to the High  Court  has jurisdiction to issue the notice of enhancement of  sentence and the convicted person is entitled while showing cause why his  sentence  should  not be enhanced also  to  show  cause against his conviction. The  view taken by the Bombay High Court in the cases  noted above  has been that in all the four cases  mentioned  above the accused has had an opportunity of showing cause  against his  conviction and that he is not entitled to a further  or second  opportunity of doing so while showing cause why  his sentence  should not be enhanced.  It has not made any  dis- tinction  between  the exercise of appellate  or  revisional jurisdiction  by  the  High Court  nor  between  appeals  or revision  applications dismissed summarily or in limine  and appeals  or  revision applications dismissed  after  a  full hearing  in the presence of both the parties.  It  has  also extended  the  same  principle to  a  reference  made  under section 438 and an order passed by the High Court thereupon- "No order on reference", without even issuing notice to  the applicant  at  whose instance the Sessions  Judge  made  the reference.  (Vide Emperor v. Nandlal Chunilal  Bodiwala(1)). The  Allahabad and the Patna High Courts have followed  this view  of  the  Bombay  High Court  in  the  decisions  above referred  to  and  the  Lahore  High  Court  in  Emperor  v. Dhanalal(2)  also followed the same.  But this  decision  of the  Lahore High Court was overruled by a Special  Bench  of that Court in Emperor v. Atta (1)  [1945] 48 Bombay L.R. 41 (F.B.). (2)  [1928] I.L.R. 10 Lahore 241. 129 Mohammad(1).   The Special Bench held that the  exercise  of revisional  jurisdiction  by  the  High  Court  is  entirely discretionary,   that   an  application  for   revision   is entertained as a matter of favour, that no party is entitled

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to be beard either himself or by pleader when the Court  in, Exercising its revisional jurisdiction and that therefore  a dismissal   of  an  application  for  revision   in   limine tantamounts  to  a  refusal by the  Court  to  exercise  its revisional jurisdiction and the convicted person under those circumstances is at all events entitled while showing  cause why  his sentence should not be enhanced also to show  cause against  his conviction.  It went to the length  of  holding that  section  439(6) confers upon the convicted  person  an unfettered and unlimited right of showing cause against  his conviction, which right cannot be taken away unless there is a  judgment in rem which only would operate as a bar to  the decision  of the same matter when it arises in the  exercise of what is in effect the exercise of the ordinary  appellate jurisdiction.  The Rajasthan High Court in State v.  Bhawani Shankar(2)  has drawn a distinction between cases where  the accused  has not been heard at all and given no  opportunity to show cause against his conviction his jail appeal  having been dismissed under section 421 or his revision application having been dismissed without hearing him and cases where he has  already  been heard and given an  opportunity  to  show cause  against his conviction whether it be in appeal or  in revision  and  whether his dismissal is summary  or  on  the merits  and held that in the former cases he is entitled  to ask  the Court to hear him and thus allow him to show  cause against  his conviction under section 439(6) if a notice  of enhancement is issued to him. The  principle as to the finality of criminal judgments  has also  been  invoked while considering this  question.   This principle  has  been recognised by this  Court  in  Janardan Reddy & Others v. The State of (1)  [1943] I.L.R. 25 Lah. 391 (F.B.). (2)  I.L.R. [1952] 2 Rajasthan 716. 17 130 Hyderabad  &  Others(1)  at  page 367  where  Fazl  Ali,  J. observed:- "It is true that there is no such thing as the principle  of constructive  res judicata in a criminal case, but there  is such a principle as finality of judgments, which applies  to criminal  as  well as civil cases and is implicit  in  every system,  wherein provisions are to be found  for  correcting errors  in  appeal or in revision.   Section  430,  Criminal Procedure Code........... .............................  has given  express recognition to this principle of finality  by providing that "Judgments and orders passed by an  Appellate Court  upon appeal shall be final, except in cases  provided for in section 417 and Chapter XXXII" Section  417 relates to appeals on behalf of  Government  in cases of acquittal by any Court other than a High Court  and Chapter  XXXII relates to reference and revision which  also are powers exercised by the High Court over the judgments or orders  of inferior Courts, thus excluding from the  purview of  this  exception all judgments and orders passed  by  the High  Court as an Appellate Court.  Section 430 does not  in terms  give  finality  to the judgments of  the  High  Court passed  in exercise of its revisional jurisdiction, but  the same  principle  would  apply  whether  the  High  Court  is exercising  its  appellate jurisdiction  or  its  revisional jurisdiction, because in either case the High Court which is the  highest  Court  of  Appeal  in  the  State  would  have pronounced  its  judgment,which judgment would  replace  the judgment of the lower Court and would be final.  Even  while exercising its revisional powers under section 439 the  High Court  exercises any of the powers conferred on a  Court  of

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Appeal by sections 423, 426, 427 and 428 and it is in effect an  exercise of the appellate jurisdiction though  exercised in the manner indicated therein.  This principle of finality of criminal judgments therefore would equally apply when the High  Court is exercising its revisional jurisdiction.  Once such a judgment has been pronounced by the High Court either in   the  exercise  of  its  appellate  or  its   revisional jurisdiction no review or (1)  1951 S C.R. 344. 131 revision can be entertained against that judgment and  there is  no provision in the Criminal Procedure Code which  would enable even the High Court to review the same or to exercise revisional jurisdiction over the same.  The judgment of  the High Court would replace that of the lower Court which would no  longer be subsisting but would be replaced by  the  High Court  judgment and thus it is only the High Court  judgment which  would  be  final and would have  to  be  executed  in accordance  with  law  by the  Courts  below.   Section  425 requires  that whenever a case is decided on appeal  by  the High  Court it should certify its judgment or order  to  the Court  by  which  the finding, sentence  or  order  appealed against  was recorded or passed and the Court to  which  the High  Court certifies its judgment or order shall  thereupon make such orders as are conformable to the judgment or order of  the  High Court and, if necessary, the record  shall  be amended in accordance therewith.  Section 442 similarly pro- vides that when a case is revised under Chapter XXXII by the High Court it shall in the same manner certify its  decision or  order  to the Court by which the  finding,  sentence  or order revised was recorded or passed and the Court to  which the  decision or order is so certified shall thereupon  make such orders as are conformable to the decision so  certified and, if necessary, the record shall be amended in accordance therewith.   These provisions are enacted because  the  High Court  itself  does  not execute or carry  into  effect  the sentences or orders passed against the convicted persons but the  work  of such execution has necessarily to be  done  in conformity  with the sentences or orders passed by the  High Court  by  the  Courts which  originally  passed  the  same. Nevertheless the latter Courts execute or carry into  effect the  sentences or orders which are ultimately passed by  the High  Court and are invested with finality.  In these  cases there  is  no  occasion  at all  for  the  exercise  of  the revisional powers by the High Court under section 439(1)  of the Criminal Procedure Code.  That jurisdiction can only  be exercised  by  the  High  Court  when  the  record  of   the proceedings of Subordinate Courts has been called for 132 by itself or the case has been reported to it for orders  or has  otherwise come to its knowledge and the High Court  suo Motu  on the application of the party interested  thinks  it fit to issue a notice for enhancement of sentence.  This  is a clear exercise of the revisional jurisdiction of the  High Court  and can be exercised by it only qua the judgments  of the  lower  Courts and certainly not qua its  own  judgments which have replaced those of the lower Courts. The Criminal Procedure Code unlike the Civil Procedure  Code does not define "judgment" but there are observations to  be found  in a Full Bench decision of the Madras High Court  in Emperor   v.   Chinna  Kaliappa  Gounden   and   another(1), discussing the provisions of section 366 and section 367  of the Criminal Procedure Code and laying down that an order of dismissal  under  section 203 is not a judgment  within  the meaning  of section 369.  The principle of autrefois  acquit

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also  was held not to apply as there was no trial  when  the complaint  was dismissed under section 203 with  the  result that the dismissal of a complaint under section 203 was held not to operate as a bar to the rehearing of the complaint by the  same Magistrate even when such order of  dismissal  had not  been set aside by a competent authority.   Section  366 lays  down what the language and contents of a judgment  are to  be  and  section 367 provides that the  judgment  is  to contain  the decision and the reasons for the  decision  and unless  and  until  the judgment  pronounced  by  the  Court complied  with these requirements it would not amount  to  a judgment and such a judgment when signed would not be liable to be altered or reviewed except to correct a clerical error by  virtue of the provisions of section 369 save as  therein provided.  These observations of the Madras High Court  were quoted  with approval by Sulaiman, J. in Dr. Hori Ram  Singh v. Emperor(").  He observed that the Criminal Procedure Code did  not define a judgment but various sections of the  Code suggested  what it meant.  He then discussed those  sections and concluded that "judgment" in the Code meant a judg- (1) [1905] I.L.R. 29 Mad. 126. (2) A.I.R. 1939 Federal Court 43. 133 ment of conviction or acquittal.  Reference was then made to the  observations of Sri Arnold White, C. J. in  Emperor  v. Chinna Kaliappa Gounden & another(1) which were followed  by another  Division Bench of the Madras High Court in  Emperor v.  Maheshwara Kondaya (2) and it was held that an order  of discharge  was not a judgment as "a judgment is intended  to indicate  the final order in a trial terminating  in  either the  conviction or acquittal of the accused".  A Full  Bench of  the  Bombay High Court in Emperor  v.  Nandlal  Chunilal Bodiwala(3) pronounced that a judgment is the expression  of the  opinion of the Court arrived at after  dueconsideration of  the evidence and all the arguments.  It was pointed  out that  sections 366 and 367 applied to the judgments  of  the trial  Court and section 424 dealing with the  judgments  of the Appellate Courts provided that the rules relating to the judgments  of a Trial Court shall apply so far as may  "  be practicable  to  the judgment of any Appellate  Court  other than a High Court.  It followed therefore that there was  no definite rule as to what the judgment of a High Court acting in  its  appellate as well as  its  revisional  jurisdiction should  contain.  It was quite natural because the  judgment of   the  High  Court  in  its  criminal  jurisdiction   was ordinarily final and did not therefore require the statement of  any  reasons whether the High Court was  exercising  its appellate   or   revisional  jurisdiction.    The   judgment howsoever  pronounced  was  however the  expression  of  the opinion  of the Court arrived at after due consideration  of the  evidence  and  all the arguments  and  would  therefore either be a judgment of conviction or acquittal and where it would not be possible to predicate of the pronouncement that it was such an expression of opinion the pronouncement could certainly not be taken as the judgment of the High Court. A  judgment pronounced by the High Court in the exercise  of its  appellate or revisional jurisdiction after issue  of  a notice  and  a  full hearing in the  presence  of  both  the parties would certainly be arrived at after (1) [1905] I.L R. 29 Mad. 126. (2) [1908] I.L.R 31 Madras 543. (3)  [1945] 48 Bom.  L.R. 41 (F.B.). 134 due consideration of the evidence and all the arguments  and would  therefore  be  a  judgment  and  such  judgment  when

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pronounced  would replace the judgment of the  lower  Court, thus  constituting the judgment of the High Court  the  only final judgment to be executed in accordance with law by  the Court below.  When however a petition of appeal presented by a  convicted person from jail is summarily  dismissed  under section  421  or  a  revision application  made  by  him  is dismissed summarily or in liming without hearing him or  his pleader  what-the High Court does is to refuse to  entertain the  petition  of appeal or the criminal  revision  and  the order  passed  by the High Court  -"dismissed  or  rejected" cannot  be said to be the expression of the opinion  of  the Court arrived at after due consideration of the evidence and all  the arguments.  It is a refusal to admit the appeal  or the  criminal  revision  so that notice  be  issued  to  the opposite  party  and  the matter be  decided  after  a  full hearing  in the presence of both the parties.  It  would  be only after the appeal or the criminal revision was  admitted that  such a notice would issue and the mere refusal by  the High Court to entertain the appeal or the criminal  revision would certainly not amount to a judgment.  The same would be the position when a reference was made by the lower Court to the  High  Court  under section 438 and the  High  Court  on perusing  the  reference  made an  order-"no  order  on  the reference"-as the High Court on a consideration of the terms of  the reference must have come to the conclusion  that  no prima   facie  case  has  been  made  out  to   warrant   an interference on its part.  If the High Court thought that it was  a  prima  facie  case for  its  interference  it  would certainly entertain the reference and issue a notice to  the parties  concerned to show cause why the judgment and  order passed by the lower Court should not be revised. When a petition of appeal is presented to the High Court  by the  convicted  person or his pleader section  421  provides that no such appeal should be dismissed unless the appellant or  his  pleader has had a reasonable opportunity  of  being heard in support of 135 the  same  and  the High Court might  before  dismissing  an appeal  under that section, call for the record of the  case but  would not be bound to do so.  Even in such a  case  the hearing  accorded to the appellant or his pleader  would  be with  a view to determine whether there was a prima ’  facie case  made out to warrant its interference in  appeal.   The appellant  or his pleader would be heard in support of  that position and if he satisfied the High Court that there was a prima  facie case for its interference the High Court  would admit the appeal and order a notice to issue to the opposite party  in which event the appeal would be. decided  after  a full  hearing  in  the presence of both  the  parties.   The calling  for  the  records  of  the  case  also  though  not compulsory  but  discretionary with the Court would  be  for this very purpose, viz., to determine whether a prima  facie case  for its interference was made out.  The whole  purpose of the hearing accorded to the appellant or his pleader even after  calling  for  the records of the  case  would  be  to determine  whether a prima facie case for  its  interference was made out and it would not be within the province of  the Court  at that stage to fully consider the evidence  on  the record and hear arguments from the appellant or his  pleader with  a  view to determine whether the conviction  could  be sustained  or the sentence passed upon the accused could  be reduced.   The  setting  aside of  the  conviction  and  the reduction, if any, in the sentence could only be  determined by  the Court after notice was issued to the opposite  party and  a full hearing took place in the presence of  both  the

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parties.   Even  in  the case of a summary  dismissal  of  a petition  of appeal under these circumstances  the  position would certainly not be any different from that which obtains -in  the.  case of a summary dismissal of  the  petition  of appeal  presented by the convicted person from jail  or  the summary  dismissal of an application for  criminal  revision made  by  him or on his behalf to the High  Court.   In  all these  cases  there will be no judgment of  the  High  Court replacing the judgment of the lower Court and the action  of the  High Court would only amount to a refusal by  the  High Court to admit the 136 petition of appeal or the criminal revision and issue notice to the opposite party with a view to the final determination of the questions &rising in the appeal or the revision.  The order  dismissing the appeal or criminal revision  summarily or  in  liming would no doubt be a final order of  the  High Court  not  subject to review or revision even by  the  High Court  itself  but  would  not  tantamount  to  a   judgment replacing  that  of the lower Court.  The  convicted  person would  be  bound  by that order and would  not  be  able  to present  another  petition  of  appeal  or  application  for criminal revision challenging the conviction or the sentence passed  upon him by the lower Court.  But such  order  would not  have the effect of replacing the judgment or  order  of the lower Court which would in that event be subject to  the exercise of revisional jurisdiction by the High Court  under section  439 of the Criminal Procedure Code at the  instance of the State or an interested party.  In the cases (1) & (3) noted  above therefore there being no judgment of  the  High Court replacing the judgment of the lower Court section  439 (1)  would  operate and -the High Court in exercise  of  its revisional   jurisdiction   either  Suo  motu  or   on   the application  of the interested party would be in a  position to  issue the notice of enhancement of sentence which  would require to be served on the accused under section 439(2)  so that  he  would have an opportunity of  being  heard  either personally or by pleader in his own defence.  In that  event the  convicted  person  in showing cause  why  his  sentence should not be enhanced would also be entitled to show  cause against his conviction. It follows therefore that in the case of a summary dismissal or  a  dismissal  in  limine  of  petitions  of  appeal   or applications  for  criminal revision even if  the  convicted person or his pleader has been heard by the High Court  with a  view to determine if there is a prima facie case for  its interference,  the convicted person to whom  an  opportunity has been given under section 439(2) of showing cause why his sentence  should not be enhanced would in showing  cause  be entitled also to show cause against his conviction.  The 137 same would also be the position when a reference made by the lower  Court  to  the High Court under section  438  of  the Criminal  Procedure  Code  is rejected  by  the  High  Court without  issuing notice to the parties concerned  by  merely ordering-"no  order on the reference".  In cases  where  the petition of appeal or the application for criminal  revision is admitted by the High Court and a notice is issued to  the opposite  party and the High Court maintains the  conviction with  or  without  reducing the  sentence  passed  upon  the accused  the judgment of the High Court in the  exercise  of its  appellate or revisional jurisdiction would replace  the judgment  of the lower Court and there would be no  occasion at all for the exercise by the High Court of its  revisional powers under section 439(1) which can only be exercised  qua

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the judgments of the lower Courts and certainly not qua  its own  judgments.   The  cases (2) &  (4)  noted  above  would therefore be outside the purview of section 439(1). If  that is  so there would be no question accused an opportunity  of being heart sonally or by pleader in his defence 439(2)  act the  provisions of section 439(6) would certainly  not  come into  operation  at  all.  If no notice  of  enhancement  of sentence  could issue under these circumstances no  question at all could arise of the convicted person showing cause why his  sentence should not be enhanced and being  entitled  in showing cause also to show cause against his conviction. It  follows by way of a necessary corollary that  no  notice for enhancement of sentence can be issued by the High  Court when a judgment is pronounced by it after a full hearing  in the  presence of both the parties either in exercise of  its appellate  or its revisional jurisdiction.  Such notice  for enhancement of sentence can be issued by it either suo  motu or at the instance of an interested party when the  judgment of  the lower Court subsists and is not replaced by its  own judgment in the exercise of its appellate or its  revisional jurisdiction.  When the judgment of the lower Court has been under its scrutiny on notice being issued to 18 18 138 the  opposite party and on a full hearing accorded  to  both the  parties notice for enhancement of sentence can only  be issued  by  it before it pronounces its  judgment  replacing that  of the lower Court.  When such hearing is in  progress it is incumbent upon the High Court or the opposite party to make up its mind before such judgment is pronounced  whether a  notice  for enhancement of sentence should issue  to  the accused.   There would be ample time for the opposite  party to make up its mind whether it should apply for a notice  of enhancement  of  the  sentence.  The High Court  also  on  a perusal  of  the  record and  after  hearing  the  arguments addressed  to it by both the parties would be in a  position to  make up its mind whether it should issue such notice  to the accused.  But if neither the opposite party nor the High Court does so before the hearing is concluded and the  judg- ment  is pronounced it will certainly not be open to  either of them to issue such notice for enhancement of sentence  to the accused, because then the judgment of the High Court  in the  exercise  of its appellate or  revisional  jurisdiction would  replace  that of the lower Court and  section  439(1) would  have  no  operation at all.  Even in the  case  of  a reference  by  the  lower Court under  section  438  of  the Criminal  Procedure  Code  the  High Court  if  it  did  not summarily reject such a reference would issue notice to  the parties  concerned and then there would be occasion  for  it either suo motu or on the application of an interested party to  issue  a notice of enhancement of  sentence  before  the hearing  was concluded and a judgment was pronounced by  it. The  procedure obtaining in the several High Courts  to  the effect  that  notice for enhancement of sentence  can  issue even  after  the  appeal or  the  application  for  criminal revision  is  disposed  of by the High  Court  and  judgment pronounced  thereupon is not correct and is contrary to  the true position laid down above. It  was  contended that the non-obstante clause  in  section 439(6),  viz.  "notwithstanding anything contained  in  this section"  was  meant to confer upon the convicted  person  a right to show cause against his 139 conviction  in those cases where a notice to show cause  why his sentence should not be enhanced was issued against  him,

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whatever be the circumstances under which it might have been issued.   Once you had a notice for enhancement of  sentence issued  against the convicted person this right  of  showing cause  against his conviction also accrued to him  and  that right  could  be exercised by him even though he had  on  an earlier occasion unsuccessfully agitated the maintainability of  his  conviction either on appeal or in  revision.   This non-obstante  clause could not in our opinion, override  the requirements  of  section  439(1)  which  provides  for  the exercise of revisional powers by the High Court only qua the judgments  of  the lower Courts.  Section 439(6)  would  not come  into  operation unless a notice  for  enhancement  was issued under section 439(2) and a notice for enhancement  of sentence under section 439(2) could not be issued unless and until  the  High  Court  thought  it  fit  to  exercise  its revisional powers under section 439(1) qua the judgments  of the  lower  Courts.  The High Court has no  jurisdiction  to exercise  any  revisional powers qua its  own  judgments  or orders, the same being invested with finality and  otherwise being outside the purview of the exercise of its  revisional jurisdiction,  and  the  only purpose  of  the  non-obstante clause  in  section  439(6) can be to  allow  the  convicted person also to show cause against his conviction when he  is showing  cause  why his sentence should not be  enhanced  in spite of the prohibition contained in section 439(5).  Where an  appeal lies under the Code and no appeal is  brought  no proceedings  by  way of revision can be entertained  at  the instance  of  the  party who could have  appealed.   If  the convicted person could have ’filed an appeal but had  failed to  do so he could certainly not approach the High Court  in revision and ask the High Court to set aside his conviction. If  he could not file any application in revision  he  could not show cause against his conviction under section 439  (1) of the Criminal Procedure Code and it was in order to remove this  disability  that the non-obstante  clause  in  section 439(6) was enacted so that when the High 140 Court   was  exercising  its  revisional  jurisdiction   the convicted person could show cause against his conviction  in spite of the fact that otherwise he could not have been able to  do  so, be not having appealed when an  appeal  lay  and therefore  not  being  entitled to file  an  application  in criminal   revision   and   challenge   the   validity    or maintainability of his conviction.  Section 439(6) therefore confers  on  the  convicted  person a  right  which  he  can exercise  in  the  event  of a  notice  for  enhancement  of sentence  being  issued against him in the exercise  of  the revisional  jurisdiction by the High Court in spite  of  the fact  that he was not entitled to question the  validity  or maintainability of his conviction in a substantive  applica- tion for criminal revision filed by him for the purpose  and this  right  is  available to him only  if  the  High  Court exercising its revisional jurisdiction under section  439(1) thinks  it fit to issue a notice of enhancement of  sentence against  him under section 439(2) and in that event  he  has the  right  also to show cause against his  conviction  when showing cause why his sentence should not be enhanced. We shall now review the decisions of the various High Courts to which our attention has been drawn by the learned counsel appearing before us.  Turning first to the decisions of  the Bombay  High  Court we were referred to  Emperor  v.  Chinto Bhairava  (1),  a  decision given in  the  year  1908  which recognised the invariable practice of that Court for over 25 years  according to which the accused in showing  cause  why the sentence should not be enhanced was not allowed to  dis-

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cuss  the  evidence and satisfy the Court that he  had  been wrongly convicted.  The practice of the Court in such  cases was  to accept the conviction as conclusive and to  consider the  question of enhancement of sentence on that basis.   It was  open  to  the  accused to apply  for  revision  of  the conviction,  but having failed to avail himself of that,  he could  not  be  permitted  to assail  the  conviction  in  a proceeding where the sole question was whether the  sentence passed by the lower Court was adequate or not.  It may be (1) [1908] I.L.R. 32 Bom.  162. 141 noted  that this decision was in the year 1908  long  before the amendment of section 439 of the Criminal Procedure  Code by Act XVIII of 1923 by adding subsection (6) thereto. The  next decision to which we were referred was Emperor  v. Mangal  Naran(1).   In  that case  simultaneously  with  the admission of an appeal filed by the accused the Court issued a  notice for enhancement of sentence.  When the appeal  and the  notice  came for hearing together before  the  Division Bench  the  Court  observed that such  a  practice  was  not desirable.   It was likely to produce an impression  on  the mind  of an illiterate accused in jail that it was  proposed to  enhance the sentence because he had appealed.   MacLeod, C.J. there expressed an opinion that if after an appeal  had been  heard on its merits and dismissed a notice to  enhance the sentence was issued, the accused had still the right  to show cause against his conviction, though any attempt to set aside the conviction would not have much chance of  success. He  however  expressed his preference in favour of  the  old practice,  viz.  first to deal with the appeal and  then  to consider whether a notice to enhance should issue.  No ques- tion had arisen for consideration of the Court in that  case as  to  the true construction of the  provision  of  section 439(6) of the Criminal Procedure Code and the only  question considered by the Court there was what should be the  proper procedure   to  be  adopted  when  issuing  a   notice   for enhancement  of  sentence,  whether  it  should  be   issued simultaneously with the admission of the appeal or after the appeal was finally heard and disposed of. This  opinion  expressed  by  MacLeod,  C.J.  was  therefore treated as obiter in Emperor v. Jorabhai Kisanbhai(2).   The question  that arose for consideration of the Court in  that case  was  whether  after an appeal  of  an  accused  person against his conviction and sentence had been dismissed by  a Division Bench of the High Court and a notice to enhance the sentence  was  issued  on an application on  behalf  of  the Government the application for enhancement of sentence could be (1) (1924) 27 Bom.  L.R. 355. (2) [1926] I.L.R, 50 Bom. 783. 142 heard  on its merits by another Division Bench of  the  High Court treating the conviction as correct or the accused  was under  such circumstances not entitled under section  439(6) to be re-heard on the merits of his conviction.  The  appeal filed by the accused against his conviction and sentence had been  dismissed on the 7th April, 1926.  After judgment  was delivered  by  the  Court, the  Government  Pleader  applied orally  for  issue  of a notice  for  enhancement  and  that application  was granted.  The application was heard on  the 17th  June  1926 and it was urged on behalf of  the  accused that  the  only proper procedure was to issue a  notice  for enhancement of sentence before the appeal had been  actually disposed of and that once the appeal was disposed of by  the Court there was no legal power to enhance the sentence under

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section 439 of the Criminal Procedure Code.  That contention was  negatived the Court observing that so far as the  point of  procedure was concerned there was no hard and fast  rule as  to  the  appropriate time for the  issue  of  notice  of enhancement of sentence by the High Court and resorting,  to the  principle of the finality of judgments as  regards  the accused  being concluded by the judgment of the  High  Court dismissing  his  appeal and confirming the  sentence  passed upon him.  The judgment there was interpreted as  confirming the  conviction and rejecting the appeal as to the  sentence in the sense that it saw no reason to reduce it and that was not  treated as a decision that the sentence should  not  be enhanced  if a proper procedure was taken such as  the  Code allowed for the purpose and therefore so far as the judgment went  there was nothing which in any way tied the  hands  of the  Court.  Sections 369 and 430 of the Criminal  Procedure Code   were  referred  to  and  the  Court  held  that   the observations of MacLeod, C.J. in Emperor v. Mangal  Naran(1) above  referred to were obiter dicta not binding  upon  them and the application must be heard on the merits treating the conviction  as  correct  in view of  the  dismissal  of  the appeal. It is no doubt true as observed by Madgavkar, J. (1)  [1924] 27 Bom.  L.R. 355. 143 in regard to the practice as to the proper time for  issuing of  the notice of enhancement that the question of  adequacy of  punishment is, in the first instance, a matter  for  the Government  and for the District Magistrate.  From the  time when  the  sentence is passed, and at all events up  to  the time when anappeal is admitted and notice is received, it is open to Government to consider the sufficiency of a sentence and before hearing of the appeal, to apply to the High Court for enhancement of the sentence if they are so advised.   In that  event the appeal as well as the notice of  enhancement would  be  heard together and the Court hearing  the  appeal would  apply its mind not only to the question  whether  the conviction  should  be confirmed but also  to  the  question whether  the sentence should be reduced or enhanced  as  the case  may  be’ It is only in rare instances  that  the  High Court  considers for itself the question of  enhancement  of sentence  and  only  if  no action has  been  taken  by  the Government  and if the High Court thinks that the  interests of justice imperatively demand it.  In such a case it  would be  a matter for consideration by the High Court whether  it should  issue  notice at the very time of the  admission  or whether it should do so while disposing of the appeal on the merits  as  to  the conviction.   The  observations  of  the learned Judge however in so far as they seem to suggest that the  appeal should be disposed of first and the question  of enhancement  of  sentence should be considered by  the  same Bench   immediately  afterwards  or  that  the  notice   for enhancement could be issued by the Court after the  disposal of  the  appeal on the merits as to conviction do  not  take into account the fact that after the judgment is  pronounced and  the  conviction is confirmed involving as  a  necessary corollary thereof the confirming of the sentence passed upon the accused also if the same is not reduced, the judgment of the  High  Court replaces that of the lower  Court  and  the exercise  of any revisional powers by the High Court by  way of  enhancement  of the sentence  is  necessarily  eschewed. These revisional powers could only be exercised by the  High Court qua the judg- 144 ment  of the lower Court and once that judgment is  replaced

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by  the  judgment of the High Court, the High Court  has  no further  powers  to review or revise its  own  judgment  and enhance  the  sentence which is thus passed by it  upon  the accused.   The  principle as to the  finality  of  judgments applied by the Court by virtue of the provisions of  section 369  and section 430 of the Criminal Procedure  Code  should not have been confined merely to the question of  confirming the  conviction  but also should have been extended  to  the confirming  of the sentence in so far as the High Court  did not see any reason to reduce the sentence already passed  by the lower Court upon the accused.  When the High Court hears the appeal on its merits it does not apply its mind only  to the question whether the conviction should be confirmed  but also applies its mind to the adequacy of the sentence passed upon  the accused by the lower Court.  In thus applying  its mind  to the question of sentence it also considers  whether the  sentence passed upon the accused by the lower Court  is adequate  in the sense that it is either such as  should  be reduced or is such as should be enhanced.  The questions  of the reduction of the sentence or enhancement of the sentence are  not  to  be viewed as if  they  fall  into  water-tight compartments and the mind of the Court hearing the appeal on merits is directed to the consideration of the matter in all its aspects -including the confirming of the conviction  and the reduction or enhancement of the sentence as the case may be.  The principle of finality of judgments should therefore be  extended not only to the question of the  confirming  of the conviction but also -to the question as to the  adequacy of  the sentence, whether the sentence which is passed  upon the accused by the lower Court should be reduced,  confirmed or enhanced.  Once therefore the judgment of the High  Court replaces that of the lower Court there is no question  which can  ever  arise of the exercise by the High  Court  of  its revisional  powers  under  section 469(1)  of  the  Criminal Procedure  Code  and the proper procedure therefore  if  the High  Court  thought  it  fit either  suo  motu  or  on  the application of the interested party 145 to issue the notice of enhancement of sentence, is to  issue the  said  notice  before  the  hearing  of  the  appeal  is concluded  and the judgment of the High Court in  appeal  is pronounced.   We  are  therefore of  the  opinion  that  the decision  reached by the High Court of Bombay in Emperor  v. Jorabhai(1)  was not correct in so far as it held  that  the notice  of enhancement could be issued by the High Court  at the  instance of the Government after the dismissal  of  the appeal on merits.  The notice for enhancement issued in that case  was not competent and should not have been  issued  at all by the High Court. The  decision  in  Emperor v. Jorabhai(1)  was  followed  in Emperor v. Koya Partab(2) which extended the same  principle to  an  appeal which had been presented from  jail  and  was summarily  dismissed  under  section  421  of  the  Criminal Procedure Code.  While dismissing the same the Court  issued a notice for enhancement.  When the notice came for  hearing the  accused contended that he was entitled to be  heard  on the  merits as to whether he should have been  convicted  or not  relying upon the provisions of section  439(6).   Beau- mont,  C.J. relied upon the -provisions of section  430  and observed that the accused was not at liberty to be heard  on the merits.  The judgment of the Court of Appeal  dismissing the appeal on the 9th June 1930 was a final order which  the Court was not at liberty to differ from and the non-obstante clause in - section 439(6) did not entitle the accused to go behind section 430 and to show cause against his  conviction

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after  his  appeal had been dismissed.   The  learned  Chief Justice followed the decision in Emperor v. Jorabhai (1) and observed that the only distinction between that case and the one  before him was that case had been heard on  the  merits and   not  summarily  dismissed.   But  in  his  view   that distinction was not one of principle.  We are of the opinion that  the  order which had been pronounced by the  Court  of Appeal  on the 9th June 1930 was not a judgment of the  High Court which replaced that of the lower Court and (1)  [1926] I.L.R. 50 Bom. 783. (2) [1930] 32 Bom.  L.R. 1286. 19 146 even though it might come within the description of an order within  the  meaning of section 430 it was  not  a  judgment within the meaning of the term set out above and not being a judgment  was  no  bar to the  accused  showing  cause  also against his conviction when showing cause against the notice for  enhancement.   The matter was one  falling  within  the category  of case No. I noted above and it was open  to  the accused  even  though his petition of appeal from  jail  was summarily dismissed under section 421 to urge while  showing cause against the notice of enhancement of sentence also  to show  cause  against  his  conviction.   This  decision  was therefore in our opinion incorrect and the accused ought  to have  been heard on the merits as to whether he should  have been convicted or not. Emperor  v.  Ramchandra Shankarshet Uravane(1)  was  a  case where  the  High Court admitted the appeal and at  the  same time  issued  a  notice to the accused  for  enhancement  of sentence.   The  observations of MacLeod, J. in  Emperor  v. Mangal Naran(2) were followed in spite of the fact that they bad  been held obiter by the Division Bench of the Court  in Emperor  v. Jorabhai (3).  Emperor v. Jorabhai (3) was  also referred  to and it was held that it was  neither  necessary nor  desirable  for the High Court to issue  a  notice,  for enhancement  of  sentence at the time of  admission  of  the appeal.   It  was  however  observed that  it  was  open  to consider  the question of enhancement of sentence after  the appeal had been heard.  If those observations were meant  to convey that the question of enhancement of sentence could be considered  after  the  appeal  had  been  disposed  of  and judgment  was pronounced by the High Court we do  not  agree with  the same.  But if they were meant to convey  that  the High  Court  could  hear  the accused  on  the  question  of enhancement of the sentence at the same time when his appeal was  heard,  before  pronouncement of the  judgment  on  the question of the conviction and the (1)  [1932] 35 Bom.  L R. 174. (2)  [1924] 27 Bom.  L.R. 355. (3)  [1926] I.L.R. 50 Bom. 783. 147 sentence passed upon him, they were perfectly in order. The  decision  in  Emperor  v.  Inderchand(1)  extended  the principle  enunciated  in  Emperor v.  Jorabhai  further  by applying  it to a case where an application for revision  by the  accused  against his conviction and sentence  had  been dismissed  by the High Court.  In that case the accused  had filed  an  application  for  revision  which  was  summarily dismissed  by  the Vacation Judge on the 30th  April,  1954. After   such  summary  dismissal  of  the  application   the Government  filed  the  criminal  revision  application  for enhancement  of sentence.  The Division Bench held that  the criminal  revision  application of the accused  having  been fully disposed of by the learned Vacation Judge there was  a

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valid  order  of dismissal, that section  430  debarred  the accused from having that order of dismissal reviewed by  the High Court that the right conferred by section 439(6)  could not  give an accused person a right to be heard against  his conviction  if such a right was in conflict with  the  other provisions of the Code, that under section 369 the Court had no power to alter the decision of the learned Vacation Judge dismissing  the revision petition filed by the  accused  and that if the accused bad already unsuccessfully exercised his right  of  appeal or revision to the High Court he  was  not entitled  in a subsequent application by the Government  for enhancement  of  sentence to ask the High Court to  go  once more  into  the  merits of the case and  to  set  aside  the conviction  which  the same Court had  previously  confirmed either in appeal or on a revision application.  Divatia,  J. was  conscious of the somewhat anomalous position so far  as the  accused was concerned and referred to the  observations of the Court in Emperor v. Babu Pandurang Mhaske(3) where it was  stated  and rightly that where the  High  Court  itself wanted  to enhance the sentence, in order that  the  accused might have the right to challenge his conviction before  the same bench which was hearing either the appeal or the (1)  [1934] 36 Bom.  L.R. 954. (2)  (1926] I.L.R. 50 Bom. 783. (3)  [1934] 36 Bom.  L.R 382. 148 application   for  enhancement,  it  was  proper  that   the application  for  enhancement  should be  heard  before  the appeal  was  finally decided, so that the accused  might  be heard at the very time when the question of enhancement  was before the Court.  While approving of these observations the learned Judge however observed that it was possible only  in a  case  where the High Court itself wanted to  enhance  the sentence and gave notice to the accused and not so in a case where  Government  approached  the High Court by  way  of  a revisional  application  as  it was  entitled  to  do  under section 439(1).  Government might approach the High Court in revision under section 439(1) at any time within six  months after  the decision of the lower Court and in the  meanwhile the  accused  might  have come to the  High  Court  and  his application might have been rejected.  That might result  in this that the conviction might be confirmed by one Bench  or a single Judge as might happen in a particular case and  the application for enhancement might be heard by another Bench. But, so far as the provisions of the section were concerned, whatever might be the anomaly in this procedure, the learned Judge  did not think that the inconvenience or  hardship  to the accused should lead the Court to construe section 439 of the Criminal Procedure Code in a manner which, according  to the  view  of  the learned Judge, was not  intended  by  the Legislature.  These observations however did not take  count of  the  fact  that if a petition of appeal  or  a  criminal revision  application  filed by the  accused  was  dismissed summarily  or in limine there was no question of a  judgment of the High Court replacing that of the lower Court and  the order  of the High Court merely amounted to a refusal by  it to  interfere  either in the exercise of  its  appellate  or revisional  jurisdiction  which order though final  and  not being  susceptible of review or revision by the  High  Court itself,  did  not  amount to a judgment of  the  High  Court barring  the application of section 439(1) of  the  Criminal Procedure  Code.   In that event the judgment of  the  lower Court not being replaced by a 149 judgment of the High Court it could be the subjectmatter  of

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criminal  revision at the instance of the Government in  the matter  of  the  enhancement of the  sentence  and  all  the provisions  of section 439 would then come  into  operation. The  High Court would be bound then under section 439(2)  to give  an  opportunity  to the accused to  be  heard  in  his defence  before  the sentence passed upon him by  the  lower Court  was  enhanced  and the accused  would  under  section 439(6)  be entitled in showing cause against the  notice  of enhancement also to show cause against his conviction.  This decision  of the High Court therefore was incorrect and  the accused  ought to have been allowed in spite of the  summary dismissal  of  his  application in revision  to  show  cause against  his  conviction  while showing  cause  against  the notice for enhancement. One  more decision of the Bombay High Court may be  referred to  and  that is Emperor v.  Nandlal  Chunilal  Bodiwala(1). That was a case where the Sessions Judge of Ahmedabad had at the instance of the petitioner made a reference to the  High Court  recommending  that the Additional Magistrate  had  no jurisdiction,   power  or  authority  to  pass   the   order complained against and that the High Court should quash  the same.   On  the reference coming before the High  Court  the following order was passed without issuing notice:-"no order on  this  reference".   The  petitioner  thereupon  filed  a criminal revision application to the High Court praying that the order of the Additional District Magistrate be  quashed. This revision application came for hearing before a Division Bench   and  the  Court  requested  the  Chief  Justice   to constitute a Full Bench to consider the following point: "When  on  a  reference made by  the  Sessions  Judge  under section 438 of the Criminal Procedure Code, a Division Bench of this Court passes an order without issuing notice,  viz., ’No order on this reference’, whether the applicant at whose instance  the Sessions Judge made the reference is  entitled to make an application in revision to this Court in the same (1)  [1945] 48 Bom. L.R. 41(F.B.). 150 matter,  in  view of the provisions of section  369  of  the Criminal Procedure Code?" The  application  was  heard  by a Full  Bench  and  it  was contended  on  behalf of the petitioner that when  the  High Court  without issuing notice to the applicant  disposed  of the  reference  made by the Sessions Judge  by  stating  "no order  on the reference" there was no judgment given on  the merits.   The order of the Court only meant that  the  Court would  not allow the matter to be brought before it  on  the recommendation of the Sessions Judge and merely disposed  of it on that view.  If a mere order of disposal of a reference or revision application amounted to a judgment the party  in whose  favour  a reference was made by  the  Sessions  Judge would  be  deprived of the right he had of  approaching  the High  Court  in  revision against the order,  if  the  Court disposed  of  the matter in the manner it had done  in  that case.This  argument was repelled by the Full Bench.  It held that section   369  of  the  Criminal  Procedure   Code debarred  the petitioner from making the  criminal  revision application,  that the order of the High Court  passed  upon the  reference amounted to a judgment within the meaning  of that term in section 369 of the Criminal Procedure Code  and after it was signed it could not be altered or reviewed in a subsequent application for revision and that even though the Division Bench of the High Court passed the order "no  order on this reference" without issuing notice to the  applicant, the  applicant   whose  favour the  Sessions  Judge  made  a reference  was  not  entitled  to  make  an  application  in

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revision to the High Court in the same matter.  Even  though this conclusion was reached by the Full Bench they  observed that  they  were  not  unaware  that  the  applicant  had  a grievance  that  his  position had  been  worsened  and  not improved by the Sessions Judge being in his favour,  because if the recommendation of the Sessions Judge was turned  down without hearing the petitioner, as had happened in that case he  was  worse off, while if the Sessions Judge  would  have been  against  him he could have still applied to  the  High Court in revision 151 and  got  an  opportunity to put his case  before  the  High Court.   This was recognised no doubt as an anomaly  but  it was caused by the provision of rule 26 of the Appellate Side Rules  of the Bombay High Court which compelled a  party  to apply  to  a  lower  revisional  Court  before  applying  in revision  to  the  High Court.  This  disability  which  the petitioner  suffered  from  was emphasised in  that  if  the Sessions  Judge had dismissed his application he could  then have  applied to and argued his case before the High  Court, but  because  the Sessions Judge was in his favour  and  had therefore  got  to  make  a  reference  to  the  High  Court recommending it to set aside the order and because the  High Court   was   not  satisfied  with  the  reasons   for   the recommendation,  and disposed of it without issuing a  rule, the petitioner was debarred from urging his arguments before the  High Court.  It might be that the reasons given by  the Sessions Judge for the recommendation might be weak or might be  insufficient,  whereas the petitioner,  if  he  appeared might  be  able to urge cogent and  sufficient  reasons  for setting aside the original order.  In spite of pointing  out this  disability the only recommendation which was  made  by the  Full Bench was that the Rule 26 of the  Appellate  Side Rules  should be properly amended so as to issue  notice  to all  the  parties concerned when a reference was made  by  a Sessions Judge recommending the setting aside of an order of the Trial Court.  We are of the opinion that the Full  Bench should   not  have  stopped  short  at  pointing  out   this disability which the applicant suffered from but should have gone  further  and held that the order passed  by  the  High Court  on the reference, though final under section  430  of the  Criminal Procedure Code was not a judgment  within  the meaning  of  that  term  and therefore  did  not  debar  the applicant  from  making the  criminal  revision  application which he did under section 439(1) of the Criminal  Procedure Code.  Such an order did not amount to a judgment within the definition thereof given by the Full Bench itself which was: "a  judgment is the expression of the opinion of  the  Court arrived at after due consideration of the 152 evidence and of the arguments" as pointed out earlier in the course  of this judgment.  We are of the opinion  that  this decision of the Bombay High Court was also incorrect. Emperor  v.  Jorabhai (1) was followed by  the  Lahore  High Court  in Emperor v. Dhanalal(2).  In that case  a  revision petition  filed  on  a behalf of the  convicted  person  was dismissed  after hearing counsel.  Subsequently a report  of the  Sessions Judge was received and the learned  Judge  who had  dismissed  the revision petition issued  a  notice  for enhancement  of  sentence and the Court  held  that  section 439(6) was meant to give an accused person to whom a  notice for enhancement was issued and who had not appealed or if no appeal lay had not applied for revision of his conviction an opportunity to question the correctness of his conviction if it was proposed to enhance his sentence.  But if a  petition

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for  revision against his conviction by a convict  had  been rejected  by  a  Judge of the High Court and  a  notice  had subsequently  been  issued  to him to  show  cause  why  his sentence should not be enhanced the convict was barred  from showing  cause against his conviction and the fact that  the previous  order dismissing the revision was  passed  without issuing  notice to the opposite party made no difference  to the  position.  The Court also invoked the principle of  the finality  of  judgments  and further  held  that  the  words "unless he had already done so" though not occurring at  the end  of  the sub-section were to be presumed to  be  implied from  the ordinary presumption as to the finality of  orders in  criminal  revision  proceedings.  In  arriving  at  this conclusion Addison, J. observed:- "In  the  present case there has been a  judgment  -of  this Court  on the very full revision application brought by  the convict.   By that judgment the petition was  dismissed  and the  conviction  confirmed.   Under  section  369,  Criminal Procedure  Code that judgment cannot be reviewed.  It  is  a final  judgment  of  this  Court,  and  in  my  opinion  the provisions of sub- (1)  [1926] I.L.R. 50 Bom. 783. (2)  [1928] I.L.R. 10 Lah. 241. 153 section  (6), section 439, do not give the  convict  another opportunity  in these circumstances to be heard  as  regards his conviction". There was no justification whatsoever for reading the  words "unless  he  had  already done so" in the  section  and  the reasoning  adopted  by  the learned  Judge  in  our  opinion wrongly  invested the order passed by the High Court in  the exercise  of  its  revisional  jurisdiction  dismissing  the application  without issuing a notice to the opposite  party with the character of a judgment which could only be enjoyed by it if it had been pronounced after a full hearing in  the presence  of  both the parties after notice  issued  to  the opposite  party.  Then the pronouncement of the  High  Court would  have  been a judgment replacing the judgment  of  the lower  Court  and  not  subject  to  the  exercise  of   any revisional jurisdiction under section 439(1) of the Criminal Procedure Code.  Where the petition for revision against his conviction presented by the convict had been rejected by the High Court in limine the order passed by the High Court  did not  tantamount to a judgment which would debar the  convict from showing cause against the conviction when showing cause against  a  subsequent notice for  enhancement  of  sentence issued by the High Court. The learned Judge further observed: "There  appears  to be no distinction between  dismissing  a revision  petition in limine or after notice.  The  judgment is  in  either case an effective and final judgment  of  the Court.   In  this respect there is no difference  between  a revision      petition     and     a      memorandum      of appeal.................... In these circumstances I can  see no  force  in  the  argument that  an,  order  dismissing  a revision  petition without issuing notice is different  from an  order  after the issue of notice, or that there  is  any distinction  between a judgment of this Court passed on  the revision side and one on the appellate side". While  agreeing with the observations of the  learned  Judge that  for  the  purposes  of section  439(1)  there  was  no distinction between a judgment of 20 154 the  High Court passed on the revision side and one  on  the

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appellate  side we are of the opinion that there is  a  real distinction between orders dismissing a revision petition or a petition of appeal in limine without issuing notice to the opposite party and judgments pronounced by the High Court in the  exercise  of its appellate or  revisional  jurisdiction after  a  full hearing in the presence of both  the  parties after the issue of notice.  The latter are judgments in  the true  sense  of  the  term  which  debar  the  exercise   of revisional jurisdiction by the High Court under section  439 (1) of the Criminal Procedure Code. This decision of the Lahore High Court was however overruled by  a  Special  Bench  of that  Court  in  Emperor  v.  Atta Mohammad(1).   A  criminal  revision  application  had  been dismissed in limine and thereafter a notice for  enhancement of  sentence was issued by the High Court.  The decision  of that  Court in Emperor v. Dhanalal(1) following  Emperor  v. Jorabhai(3) was cited as debarring the accused from  showing cause against his conviction and Blacker, J. before whom the matter  was  argued  in the  first  instance  recommended  a reference  to a larger Bench and the reference came  up  for hearing  and  final disposal before a Special Bench  of  the Court.   It was held that the accused was entitled  to  show cause  against his conviction notwithstanding the fact  that his  petition  for  revision of the order by  which  he  was convicted had already been dismissed in limine under section 435 of the Criminal Procedure Code.  The question whether an order  under  section 435 was a judgment  was  discussed  by Blacker,  J. while pronouncing the judgment of  the  Special Bench.   He  referred to the case of Dr. Hori Ram  Singh  v. Emperor(1)  above referred to and quoted with  approval  the observations of Sulaiman, J. that every order in a  criminal matter was not a judgment and that ’judgment’ in the  Crimi- nal  Procedure  Code  meant  a  judgment  of  conviction  or acquittal.   Applying  this  definition  the  learned  Judge observed:- (1) [1943] I.L.R. 25 Lah. 391 (F.B.).  (2) [1928] I.L.R.  10 Lahore 241. (3) [1926] I.L.R. 50 Bom. 783.  (4) A.I.R. 1939 F.C. 43. 155 "It  will be seen that an order under section 435  can  with difficulty  be called a judgment.  All that a Judge does  at this preliminary stage is either to send for the records  of the lower Court with a view to examining them under  section 439(1)  or to refuse to do so.  It is difficult to  see  how the latter can possibly be called a judgment of  conviction. When such an order consists of the one word ’Dismissed’  can it necessarily be taken as a judicial pronouncement that  in the  opinion  of  the  Judge  the  respondent  was   rightly convicted- upon the evidence?  It seems to me that all  that it means is that the Judge sees no adequate ground disclosed in  the  petition  or  on  the  face  of  the  judgment  for proceeding further". This  reasoning  in our opinion was quite  sound.   But  the learned  Judge  proceeded  further  to  make  a  distinction between the summary dismissal of a petition of appeal  under section 421 and the summary dismissal of a criminal revision application  under section 435 stating that the reasons  for which the High Court would summarily dismiss an appeal  were very  different  from  those for which it  would  refuse  to interfere  in revision, and in the case of appeal  it  would only  do  so when the material before it was  sufficient  to satisfy it beyond any doubt of the accused’s guilt, whereas, on  revision  the  High Court  would  not  interfere  merely because  it  did  not agree on every point  with  the  Court below,,  as  long  as  the  Courts  below  have  come  to  a

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reasonable  decision on the evidence.  This  distinction  in our  opinion  does not affect the position  that  the  order pronounced  by  the High Court dismissing  the  petition  of appeal or a criminal revision application in limine  without issuing  notice  to the opposite party is  merely  an  order dismissing  the  same on the ground that there is  no  prima facie  case for interference of the High Court and does  not amount to a judgment pronounced by the High Court after full hearing  in the presence of both the parties which only  can debar   the  High  Court  from  exercising  its   revisional jurisdiction  under section 439(1).  Mr. Justice Mahajan  as he then was delivered a concurring judgment but went a  step further and observed that 156 the  true interpretation of section 439(6) was that it  gave an  unlimited  right  to the accused to  whom  a  notice  of enhancement  was issued under section 439(2) to  show  cause against  his conviction and the Judge was bound to  go  into the  evidence  with a view to find for himself  whether  the conviction  could be sustained.  This right accrued  to  the convict on service of notice of enhancement of sentence  and could  not  be negatived by anything that had  preceded  the issue  of  that notice.  It was the Judge  hearing  the  en- hancement  petition  who-had to give an opportunity  to  the convict  to  challenge  his conviction  before  him  and  to satisfy  him  that the conviction was  unsustainable.   That Judge   could  not  substitute  for  his  satisfaction   the satisfaction  of some other Judge in the matter.  It  was  a condition  precedent to the passing of a  prejudicial  order against an accused person that he had another opportunity of establishing  his innocence, even if he had failed to do  so before.   The learned Judge rightly observed that  an  order made  in  the  exercise of  an  extraordinary  discretionary jurisdiction,  unless it be a judgment in rem, could not  in any way operate as a bar to the decision of the same  matter when  it  arose  in  the  exercise  of  ordinary   appellate jurisdiction,  and  that  therefore an  order  dismissing  a criminal revision application in limine could not amount  to a  judgment  of  the High Court.   The  learned  Judge  then invoked  the  principle  of the finality  of  judgments  and observed:- "On  the other band if the view be correct that  all  orders passed  in exercise of revisional jurisdiction whether  they be of dismissal of the petition in limine, or otherwise take away the right of the convict to challenge his conviction in view  of  section 369, Criminal Procedure Code  as  in  such cases  a  decision  given  already  cannot  be  altered   or reviewed, then I do not see how for purposes of  enhancement of the sentence, the previous decision can be altered.   Any Judge deciding a petition for revision under section  439(1) must  consider the propriety of the sentence as well as  the propriety and legality of the conviction, and in my  opinion he must be presumed to 157 have  done  so.  If a previous decision on the  question  of conviction bars the applicability of section 439(6), it also bars  the power to enhance the sentence.  Once it  has  been held that the sentence was proper, it cannot be enhanced.  I have  not  been  able  to see the  ratio  decidendi  of  the decisions  which  take  the  view,  that  the  question   of enhancement  of  the  sentence  is  something  distinct  and separate  from that of conviction, and that the question  of the  adequacy and propriety of sentence which  comes  before the  court  on  a petition for  revision  presented  by  the accused   is   a  matter  different  from  the   matter   of

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enhancement., The Judge has to see if a proper sentence  has been  passed  before he decides the case, and  the  question whether  a sentence passed is adequate or inadequate  cannot be split up in two different compartments.  The question  is only  one of the quantum of punishment and such  a  question can  only be decided but once.  Therefore in my view  either there is no power of re-revision in the High Court, in  that case there is no power to enhance the sentence on a separate petition  made for the purpose; or there is such a power  in that  case  it is available to the Crown as well as  to  the accused". This  reasoning again was in our opinion sound but led  only to the conclusion that there was no power of re-revision  in the  High,  Court  and in that case there was  no  power  to enhance  the  sentence on a separate petition made  for  the purpose.   The  learned Judge therefore ought to  have  held that if the order dismissing the criminal revision  petition in  limine tantamount to a judgment pronounced by  the  High Court  it was not open to the High Court to issue  a  notice for  enhancement  of  sentence  subsequently  under  section 439(1) of the Criminal Procedure Code.  ’Having held however that the order dismissing the criminal revision  application in limine was merely an order and not a judgment  pronounced by  the High Court and also having held that the High  Court was  entitled to issue a notice for enhancement of  sentence under  section  439(1), under those circumstances  the  only logical conclusion to which the Court could come 158 was  that  under section 439 (6) the accused  while  showing cause against the enhancement of sentence was entitled  also to  show cause against his conviction.  Mr. Justice  Mahajan confined  his decision only to the case of a dismissal of  a criminal  revision application in limine and left  open  the question  whether  a decision on the Appellate Side  of  the High Court would bar the exercise of the right under section 439  (6) inasmuch as no arguments were heard on  the  point. The  principle of this judgment in our opinion is  not  con- fined merely to cases where a criminal revision  application has been dismissed in limine but also extends to cases where a  petition  of  appeal  whether  presented  from  jail   or presented  to the Court by the appellant or his pleader  has been  similarly  dismissed summarily or  in  limine  without issuing  notice to the opposite party and also to  cases  of references made by the lower Courts to the High Court  where the  High Court has merely passed an order  without  issuing notices,  to any of the parties concerned-"no order on  this reference". The  Patna  High Court in Ramlakhan Chaudhry  v.  The  King- Emperor(1)   followed  both  these  decisions   Emperor   v. Jorabhai(2) and Empeeror v. Dhanalal(3) in holding that  the dismissal  of an appeal by the High Court did not  debar  it from subsequently enhancing the sentence in the exercise  of revisional jurisdiction after issuing notice to the accused. In  that  case  an appeal had.  been  dismissed  after  full hearing  by  the High Court.  At the hearing of  the  appeal however the Court asked the counsel for the accused to  show cause  why  the  sentence passed upon  them  should  not  be directed  to  run  consecutively thus in  effect  issuing  a notice  for  enhancement of the sentence.  When  the  matter came  on  for  hearing it was contended  on  behalf  of  the accused  that with the disposal of the appeal the Bench  and indeed  the  High  Court  was functus  officio  and  had  no jurisdiction to hear the matter at all.  This contention was repelled  by observing that the appellate judgment  was  not concerned with the

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(1)  [1931] I.L.R 10 Patna 872. (2)  [1926] I.L.R. 50 Bom. 783. (3)  [1928] I.L.R. 10 Lahore 241. 159 question of enhancement of the sentence which only arose  in the exercise of the revisional jurisdiction and the sentence to  be revised and enhanced was the sentence passed  not  by the  High  Court  but  by  the  Court  of  Sessions.   These observations run counter to the observations of Mr.  Justice Mahajan which we have quoted above and ignores the fact that once  the High Court pronounced its judgment in  the  appeal after  full hearing in the presence of both the parties  the judgment of the High Court replaced that of the lower  Court and the High Court had thereafter no power to issue a notice of  enhancement  of  sentence  purporting  to  exercise  the revisional powers vested in it under section 439 (1) of  the Criminal  Procedure Code which could be exercised  only  qua the judgments of the lower Courts and not its own judgments. The  Allahabad  High  Court also  in  Emperor  v.  Naubat(1) followed  the decisions of that Court which had approved  of and  followed  Emperor  v.  Jorabhai(2)  and  -repelled  the contention  which  had been urged on behalf of  the  accused that the application in revision filed by the Government for enhancement of their sentence was incompetent, because their appeal  from  their convictions had been  dismissed  by  the Court  and  it  was not open to them  again  to  show  cause against their convictions.  The decisions above referred  to were  held by the Court to be an authority for the  proposi- tion that the Court could under the circumstances proceed to consider  whether  the  sentence imposed  upon  the  accused should  be  enhanced,  even though it was not  open  to  the accused  to  show  cause  against  their  conviction.   This decision  was  in  our opinion not correct  for  the  simple reason  that  once  the  judgment  of  the  Appellate  Court replaced that of the lower Court it was not competent to the High Court to issue a notice for enhancement of sentence  in the  exercise of its revisional jurisdiction  under  section 439(1) and no question could therefore arise of the  accused being  called upon to show cause why their  sentence  should not be enhanced. (1)  I.L.R. 1945 Allahabad, 527. (2)  [1926] I.L.R. 50 Bom. 783. 160 The  High  Court  of  Rajasthan in  The  Stafe,  v.  Bhawani Shankar(1)  tried  to reconcile the various points  of  view above  noted by laying stress on the aspect of  the  accused having  had  an  opportunity  to  show  cause  against   his conviction and it observed that where an accused person  had already  been  beard and thus given an opportunity  to  show cause against his conviction, whether it be in appeal or  in revision  and  whether the dismissal was summary or  on  the merits,  he  could  not be heard against  his  conviction  a second  time  under  section  439(6)  as  the  principle  of finality of orders in criminal proceedings would apply.  But if  the  accused  had not been heard at  all  and  given  no opportunity  to  show cause against his conviction  and  his jail  appeal  had been dismissed under section  421  of  the Criminal Procedure Code, or his revision had been  dismissed without  hearing, he was entitled to ask the Court  to  hear him and thus allow him to show cause against his  conviction under section 439(6), if a notice of enhancement was  issued to  him.   The real question however in our opinion  is  not whether an opportunity has been given to the accused to show cause  against  his conviction at any time but  whether  the High  Court  is entitled to exercise its  revisional  powers

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under  section 439(1) and issue a notice of  enhancement  of sentence   upon  the  accused.   If  the  accused   had   an opportunity  of showing cause against his conviction  either in an appeal or a criminal revision application filed by him or on his behalf and the conviction was confirmed on a  full hearing in the presence of both the parties after the  issue of the reqiuisite notice by the Court to the opposite  party the  judgment  of the High Court would replace that  of  the lower Court which judgment could not be reviewed or  revised by  the  High  Court at all in exercise  of  its  revisional powers under section 439(1).  If however an order dismissing the  petition of appeal or criminal revision application  or even a reference made by the lower Court was made dismissing the  same summarily or in limine without issuing  notice  to the opposite party or the parties concerned it would tanta- (1)  I.L.R. [1952] 2 Rajasthan 716. 161 mount  to  the  High Court not  entertaining  any  of  these proceedings on the ground that no prima facie case had  been made out for the interference of the Court.  If such a prima facie case had been made out the High Court would admit  the appeal   or  the  revision  application  or  entertain   the reference and hear the matter fully in the presence of  both the parties, ultimately pronouncing its judgment which would take  the  place of the judgment of the  lower  Court  which would certainly not be subject to the exercise of revisional jurisdiction under section 439 (1) of the Criminal Procedure Code.  We are of the opinion that the conclusion reached  by the  High Court of Rajasthan was correct and the accused  in that  case was rightly allowed by it to show  cause  against his conviction in spite of his petition of appeal from  jail having been dismissed by it summarily, though we differ from the  reasoning  adopted by the Court in reaching  that  con- clusion.   Section 439(6) gives the accused a right to  show cause  against his conviction.  It does not merely give  him an  opportunity  to  show  cause  against  the  same.    The opportunity  is  given  to him to  show  cause  against  the enhancement of sentence under section 439(2) of the Criminal Procedure  Code and once be has got that opportunity,  while showing cause against the enhancement of his sentence he has a right to show cause against his conviction which right  he can  ,exercise  whether  he had on an  earlier  occasion  an opportunity of doing so or not; The real test is not whether the accused has had an opportunity of showing ’cause against his  conviction  but whether a judgment of  the  High  Court pronounced after a full hearing in the presence of both  the parties after notice issued in that behalf has replaced  the judgment  of the lower Court.  If the judgment of the  lower Court  is  so replaced there is no occasion at all  for  the exercise  of the revisional powers under section  439(1)  of the  Criminal Procedure Code.  If however no  such  judgment has replaced that of the lower Court the High Court has  got the power to issue a notice for enhancement of the  sentence and the accused has, in 21 162 spite  of whatever has happened in the past,  while  showing cause  against the notice of enhancement also the  right  to show cause against his conviction. The  right  which is thus conferred upon the  accused  under section 439(6) cannot be taken away by having resort to  the principle  of finality of judgments incorporated in  section 369  of  the Criminal Procedure Code.  As we  have  observed above  that  principle  comes into  operation  when  once  a judgment  of the High Court has replaced that of  the  lower

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Court and in those cases the High Court would not be  compe- tent  to review or revise its own judgment.  The High  Court would  also  not be then entitled to issue  any  notice  for enhancement  of sentence in the exercise of  its  revisional powers under section 439 (1) of the Criminal Procedure Code. Where however the High Court -in exercise of its  revisional power  over the judgments of the lower Courts under  section 439(1) issues a notice for enhancement of sentence and gives an  opportunity  to  the  accused  of  being  heard   either personally  or by pleader in his own defence  under  section 439(2)  the  right which is given by section 439(6)  to  him also to show cause against his conviction comes into  exist- ence  and this right of his cannot be’ negatived  by  having resort  to the provisions of either section 369  or  section 430  of the Criminal Procedure Code.  Section 369  in  terms provides,  "save  as otherwise provided in  this  Code"  and section  439(6)  would be an otherwise  provision  which  is saved by this non-obstante clause appearing in section  369. It  is significant to note that both these  amendments,  the one in section 369 and the other in section 439 were enacted by section 119 of Act XVIII of 1923 and the very purpose  of these   simultaneous  amendments  would  appear  to  be   to effectuate  the  right given to the accused  to  show  cause against  his conviction as enacted in section 439(6) of  the Criminal Procedure Code. It may also be noted that the right which is thus  conferred on the accused under section 439(6) is not ,an unlimited  or unfettered  right  as  observed by Mr.  Justice  Mahajan  in Emperor v. Atta Mohammad(1). (1)  [1943] I.L R. 25 Lah. 391 (F.B.). 163 In  the case of trials by jury where an accused  person  has been  convicted on the verdict of a jury and is called  upon under section 439(2) of the Criminal Procedure Code to  show cause why his sentence should not be enhanced he is entitled under  section 439(6) to show cause against his  conviction, but only so far as section 423(2) of the Code allows and has not  an unlimited right of impugning the conviction  on  the evidence.   It has been held by the Allahabad High Court  in Emperor  v.  Bhishwanath  (1) that the  combined  effect  of sections  439 (6) and 423 (2) is to entitle the  accused  to question  the  conviction  by showing only  that  the  Judge misdirected the jury or that the jury misunderstood the  law laid down by the Judge in his charge. A  similar  conclusion was reached by the  majority  of  the Judges  in  The  Superintendent and  Remembrancer  of  Legal Affairs, Bengal v. Jnanendra Nath Ghose & Another(1),  where it was held that a person who had been convicted on his  own plea  of  "guilty"  under section  271(2)  of  the  Criminal Procedure  Code,  in  showing cause  against  a  notice  for enhancement  of  sentence, could only  while  showing  cause against  his conviction attack the propriety or legality  of sentence  but could not withdraw the plea of ’guilty’ or  go behind such a plea as a confession of the facts charged. There  are no doubt two other judgments, one of  the  Bombay High Court in Emperor v. Ramchandra Shankarshet Uravane  (3) and  the  other  of the Rangoon High Court in  Nga  Ywa  and another v. King-Emperor which appear to run- counter to  the ratio decidendi of these decisions of the Allahabad and  the Calcutta High Courts respectively but we are not called upon to  resolve that conflict, if any.  Suffice it so  say  that the right which is conferred on the accused of showing cause against his conviction under section 439(6) of the  Criminal Procedure  Code is a right which accrues to him on a  notice for enhancement of sentence being served upon him and he  is

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entitled  to  exercise  the same irrespective  of  what  has happened in the past unless and until there is a judgment of the (1)  I.L.R. 1937 Allahabad 308. (2)  33 Calcutta W.N. 599. (3)  [1932] 35 Bom.  L.R. 174. (4)  [1934] I.L.R. 12 Rangoon 616. 164 High Court already pronounced against his conviction after a full  hearing in the presence of both the parties on  notice being  issued by the High Court in that behalf.  This  right of his is not curtailed by anything contained in the earlier provisions  of  section  439 nor by  anything  contained  in either section 369 or section 430 of the Criminal  Procedure Code. We are therefore of the opinion that the decision reached by the High Court of Bombay in the case under appeal was  wrong and  must be reversed.  We accordingly allow the appeal  and remand  the matter back to the High Court of  Judicature  at Bombay with a direction that it shall allow the Appellant to show  cause against his conviction and dispose of  the  same according to law. BY  THE  COURT.-The appeal is allowed and the order  of  the High  Court of Bombay is set aside, and the matter  is  sent back to the High Court with a direction that it shall  allow the  appellant  an opportunity to show  cause’  against  his conviction and dispose of the matter according to law.