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PETITIONER:

JAYARAM VITHOBA AND ANOTHER

Vs.

RESPONDENT:

THE STATE OF BOMBAY.

DATE OF JUDGMENT:

13/12/1955

BENCH:

AIYYAR, T.L. VENKATARAMA

BENCH:

AIYYAR, T.L. VENKATARAMA

BOSE, VIVIAN

AIYAR, N. CHANDRASEKHARA

CITATION:

1956 AIR 146 1955 SCR (2)1049

ACT:

Code of Criminal Procedure (Act V of 1898), s. 423 (1)(b)

and (d), s. 439-Powers of Appellate Court-High Court's

powers of revision-Conviction by the trial Court but no

sentence-High Court confirming conviction and awarding

sentence-Legality-Bombay Prevention of Gambling Act (Bombay

Act IV of 1887), ss. 4(a), 5.

HEADNOTE:

The first appellant was prosecuted under s. 5 of the Bombay

Prevention of Gambling Act (Bombay Act IV of 1887) for being

present in a gaming house for the purposes of gaming and

was, in addition, charged under s. 4(a) of the Act for

keeping a gaming house. The Presidency Magistrate, who

tried the case, found him guilty under s. 4(a) and sentenced

him to three months' rigorous imprisonment. He also found

him guilty under s. 5 but awarded no separate sentence under

that section. In revision, the High Court set aside the

conviction under s. 4(a), but confirmed that under s. 5 and

awarded a sentence of three months' rigorous imprisonment

under that section. It was contended for the first

appellant that the High Court had no power under s.

423(1)(b) of the Code of Criminal Procedure to impose any

sentence under s. 5 of the Act when no such sentence had

been awarded by the Magistrate and that, in any event, the

award of such a sentence amounted to an enhancement and was,

in consequence, illegal, as no notice had been issued there-

for, as required by law.

Held, that though s. 423(1)(b) of the Code of Criminal

Procedure was not applicable to the case, the High Court had

power to pass the sentence under s. 423(1)(d).

The law does not envisage a person being convicted for an

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offence without a sentence being imposed therefor, and the

award of a sentence by the High Court was only consequential

on and incidental to the affirmance of the conviction, and

it was a just and proper order to be passed under the law,

within the meaning of s. 423(1)(d) of the Code of Criminal

Procedure.

Such a sentence cannot amount to an enhancement as it was

awarded only for the first time in appeal. Even if it were

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to be regarded as an enhancement, the order of the High

Court could not be held to be bad for want of notice under

s. 439(2), as the first appellant had an opportunity of

showing cause against the conviction and enhancement, and,

in any event, no prejudice had resulted to him by reason of

the absence of a formal notice under the section.

Ibrahim v. Emperor (A.I.R. 1940 Bom. 129), Superintendent

and Remembrancer of Legal Affairs v. Hossein Ali (A.I.R.

1938 Cal. 439) and Pradip Chaudhry v. Emperor (A.I.R. 1946

Pat. 235), disapproved.

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 75 of

1954.

Appeal by Special Leave from the Judgment and dated the 24th

July 1953 of the Bombay High Order a Court in Criminal

Revision Application No. 669 of 1953 arising out of the

Judgment and Order dated the 29th June 1953 of the Court of

Presidency Magistrate, 9th Court at Bandra, Bombay in Case

No. 11872/73/P of 1952.,

P. K. Chatterjee, for the appellants.

N. S. Bindra, (P. G. Gokhale, with him) for the

respondent.

1955. December 13. The Judgment of the Court was delivered

by

VENKATARAMA AYYAR J.-The first appellant was, at the

relevant date, in possession of room No. 10 in House No.

334, Bazar Road, Bandra, Bombay., On information that this

room was being used as a gaming house, Mr. Bhatt Sub-

Inspector of Police, raided it on 19-9-1952, and found the

two appellants and four others in possession of gaming

instruments All of them were prosecuted under section 5 of

the Bombay Prevention of Gambling Act (Bombay Act IV of

1887), hereinafter referred to as the Act, for being present

in a gaming house for the purposes of

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gaming, and the first appellant was, in addition, charged

under section 4(a) of the Act for keeping a gaming house.

The Presidency Magistrate who tried the case, found the

first appellant guilty under section 4(a) of the Act, and

sentenced him to three months' rigorous imprisonment. He

also found him guilty under section 5 of the Act, but

awarded no separate sentence under that section. The second

appellant was found guilty under section 5, and sentenced to

three months' rigorous imprisonment. The appellants took

the matter in revision to the High Court, which set aside

the conviction of the first appellant under section 4(a) but

confirmed that under section 5, and awarded a sentence of

three months' rigorous imprisonment under that section. As

regards the second appellant, both the conviction and sen-

tence were confirmed. Against this order, the present

appeal by special leave has been preferred.

Both the courts below have concurrently found that the

appellants were present in a gaming house for the purpose of

gaming, and have thereby committed an offence punishable

under section 5 of the Act, and that finding is not under

challenge before us. The only contention that has been

raised before us-and it arises only as regards the first

appellant is that as the High Court had set aside his

conviction under section 4 (a)'of the Act, it should have

set aside the sentence passed on him under that section, and

that it had no power under the Code of Criminal Procedure,

to impose a sentence under section 5, when none such had

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been passed by the Magistrate. This contention is based on,

the terms of section 423. Under that section, when there is

an appeal against a conviction, the court has the power

under subclause (1)(b) either (1) to reverse the finding and

sentence, and acquit or discharge the accused, or order his

retrial, or (2) to alter the finding but maintain the

sentence, or (3) to reduce the sentence with or without

altering the finding, or (4) to alter the sentence with or

without either reducing the sentence or altering the

finding, but, subject to section 106(3), not so as to

enhance the same. It is urged that the

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present case does not fall within any of the four categories

mentioned above as the conviction under section 5 has been

affirmed, and no question of reduction or alteration of

sentence arises, as none had been imposed under that section

by the Magistrate, and that accordingly the order of the

High Court could not be justified under any of the

provisions of the Code. It is further contended that the

award of sentence under section 5 amounted in the above

circumstances to an enhancement, and was, in consequence,

illegal, as no notice had been issued therefor'. as required

by law.

In support of this contention, the decision in Ibrahim v.

Emperor(1) is relied on. In that case, as in the present,

the accused was convicted both under section 4(a) and

section 5 of the Act, but a sentence was passed under

section 4(a) and none under section 5. On appeal, the

learned Judges set aside the conviction under section 4(a),

and on the question of sentence, observed that the

Magistrate was wrong in not having imposed a separate

sentence under section 5, and continued:

"He ought to have imposed a sentence under each section; but

as he has not imposed a sentence under section 5, we cannot

impose one ourselves, for that would be enhancing the

sentence".

These observations undoubtedly support the first appellant.

A different view, however, was taken in two other decisions,

which may now be noticed. In Superintendent and

Remembrancer of Legal Affairs v. Hossein Ali(2), the accused

had been convicted by the Magistrate both under section 363

and section 498 of the Indian Penal Code, and sentenced to

imprisonment under section 363, no separate sentence having

been awarded under section 498. On appeal, the Sessions

Judge set aside the conviction under section 363, but held

the accused guilty under section 498. On a reference as to

whether the Sessions Judge could pass any sentence under

section 498, it was held by the High Court that he could,

under section 423 (1) (b) of

(1) A.I.R. 1940 Bom. 129. (2) A.I.R. 1938 Cal. 439.

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the Code of Criminal Procedure, as there was an alteration

of the conviction under sections 363 and 498 to one under

section 498. This view proceeds, in our opinion, on a

misconception of the true meaning of the words "alter the

finding" in section 423(1)(b) of the Code of Criminal

Procedure. When a statute enacts provisions creating

specific offences, in law these offences constitute distinct

matters with distinct incidents. Under section 233 of the

Code of Criminal Procedure, they have to be separately

charged, and under section 367, the judgment has to specify

the offence of which and the law under which the accused is

convicted. When there is a conviction for more offences

than one, there are distinct findings in respect of each of

them, and when section 423 (1) (b) speaks of a finding being

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reversed or altered by the court of appeal, it has reference

to the finding in respect of each of the offences. When,

therefore, the High Court set aside the conviction under

section 4 (a) and affirmed that under section 5, there are

two distinct findings, one of reversal and another of

affirmance, and there is no question of alteration.

The decision in Superintendent and Remembrancer Of Legal

Affairs v. Hossein Ali(1) was followed in Pradip Chaudhry v.

Emperor(2). There, the Sessions Judge convicted the accused

under sections 324 and 148 of the Indian Penal Code and

sentenced them to imprisonment under section 324, but no

sentence was imposed on them under section 148. On appeal,

the High Court set aside the conviction under section 324,

and confirmed that under section 148. Dealing with the

contention of the accused that the Court had no power under

section 423 (1) (b) of the Code of Criminal Procedure to

award a sentence under section 148, the learned Judges

observed that they had "ample power to transpose the

sentence, so long as the transposition does not amount to

enhancement". We are unable to support the reasoning in

this decision either. There is nothing about transposition

of sentence under section 423(1)(b). It only provides for

altering the finding and maintaining the sentence,

(1) A.I.R. 1938 cal. 439.

(2) A.I.R. 1946 Patna, 235.

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and that can apply only to cases where the finding of guilt

under one section is altered to a finding of guilt under

another. The section makes a clear distinction between a

reversal of a finding and its alteration, and provides that

when there is a reversal, the order to be passed is, one of

acquittal, discharge or retrial, whereas when there is an

alteration, the order to be passed is one of maintaining,

reducing or altering the sentence. But here, the order

passed by the High Court is not one of alteration of any

finding. It is, as already stated, a reversal of the

finding under section 4(a) and a confirmation of the

conviction under section 5. We are therefore of opinion that

on the language of the section, the imposition of a sentence

under section 5 by the High Court cannot be justified.

The question still remains whether apart from section 423(1)

(b), the High Court has the power to impose the sentence

which it has. When a person is tried for an offence and

convicted, it is the duty of the court to impose on him such

sentence, as is prescribed therefor. The law does not

envisage a person being convicted for an offence without a

sentence being imposed therefor. When the trial Magistrate

convicted the first appellant under section 5, it was

plainly his duty to have imposed a sentence. Having imposed

a sentence under section 4(a), he obviously considered that

there was no need to impose a like sentence under section 5

and to direct that both the sentences should run

concurrently. But, in strictness, such an order was the

proper one to be passed. The appellants then took the

matter in revision to the High Court, and contended that

their conviction under section 5 was bad. The High Court

went into the question on the merits, and found them guilty

under that section. It was the duty of the High Court to

impose a sentence under section 5, and that is precisely

what it has done. The power to pass a sentence under those

circumstances is derived from the law which enacts that on

conviction a sentence shall be imposed on the accused, and

that is a power which can and ought to be exercised by all

the courts which, having jurisdiction to decide whether the

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accused is guilty or not, find that he is. We are of

opinion that this power is preserved to the appellate court

expressly by section 423(1)(d), which enacts that it can

"make any amendment or any consequential or incidental order

that may be just or proper". When a conviction is affirmed

in appeal but no sentence had been awarded by the trial

Magistrate., the award of a sentence is consequential on and

incidental to the affirmance of the conviction, and it is a

just and proper order to be passed under the law. We are

unable to agree with the view expressed in Ibrahim v.

Emperor(1) that such an order could be an enhancement of the

sentence. Before a sentence can be said to be enhanced,

there must be one which could be enhanced, and when no

sentence was imposed on a conviction by the trial Magistrate

and one is for the first time awarded in appeal, it cannot

correctly be said to be an enhancement. We are accordingly

of opinion that it was within the competence of the High

Court to have passed the sentence which it had.

There is another ground on which the order of the lower

court can be sustained. Against the conviction of the

appellants by the Presidency Magistrate, no appeal lay, and

accordingly the appellants preferred a revision to the High

Court. Under section 439(1) of the Code of Criminal

Procedure, the High Court in hearing a revision can exercise

the powers of a court of appeal under section 423, and may

enhance the sentence. Under section 439(2), an order of

enhancement could not be passed, unless the accused bad an

opportunity of being heard in his defence, and under section

439(6), the accused is also entitled, when proceedings are

taken under section 439(2), to show cause against his

conviction. The substance of the matter is that when

proceedings are taken against the accused for enhancement of

sentence under section 439(2), he has a right to be beard

both on the question of the propriety of the conviction and

of the sentence to be imposed on him if he is convicted. In

the present case, the first appellant had an opportunity of

pre-

(1) A.I.R. 1940 Bom. 129.

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senting his case in respect of both these matters, and, in

fact, he availed himself of the same. He himself raised in

his revision the question of his guilt under section 5, and

the High Court on a consideration of all the evidence

affirmed his conviction. On the question of sentence,

section 5 enacts that when a person is found guilty under

that section, the punishment shall not be less than three

months' imprisonment and Rs. 200 fine , if be had been

convicted for the same offence previously. The first

appellant had a previous conviction, and the sentence of

imprisonment is the minimum which could be passed against

him under section 5. With reference to this aspect of the

matter, the High Court observes:

"In view of the fact that the first accused admits one

previous conviction under section 5 of the Act, the sentence

of three months' rigorous imprisonment passed upon him by

the learned Presidency Magistrate is justified".

Now, the question is whether, in the circumstances, the

order of the High Court could be held to be bad for want of

notice under section 439(2). The law does not prescribe

that any particular formalities should be complied with,

before action is taken under that section. It only provides

that the accused should have an opportunity of showing cause

against the conviction and enhancement, and, as the first

appellant was heard on both these questions, the require-

ments of the section were satisfied. The order of the High

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Court could accordingly be maintained under section 439,

even if it were to be regarded as an enhancement of the

sentence. In any event, no prejudice has resulted to the

first appellant by reason of the absence of a formal notice

under section 439(2).

In the result, the appeal is dismissed.

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