SHANKAR KERBA JADHAV & ORS. versus STATE OF MAHARASHTRA

SHANKAR KERBA JADHA V & ORS.

STATE OF MAHARASHTRA

September 8, 196,9

[S. M. SiKRl, G. K. MlfTER AND P. JAGANMOHAN REDDY, JJ.]

Code· of Cri1ni1u1J Prvc'i!tlure, ss. 417 c111c/ 423 l l) (a)-Magistrate con\:icJing acc11sed-SeJ.\'f011.~ [1]Judge acquitting _1'1e111-Appeat to High Court by State 1111dt•r .\'. 417~ of Code-Poll'ers of High Court in respect of .se111ence0 to be pa.\·sed b)' it if it rt!1·ersc•s order of ucquittcd--Can paj:<; any sentence 11·/iic/i 111agi.strate hhnse/f could have pc1ssed- Powers not fh11i1t•d ro the sentt•nct' ··-which trial coun ucttu1lly passed. The appellants "'er~ charged With offences punishable under s. 147, 447 and 325 read with s. 149 of the Indian Penal Code in con-nection with an incident in which they \Vere :.11leged to have committed house trespass into the cornpound of school anJ injured teacher. The Magistrate convicted them an<l sentencCd them 'on various counts to im-prisonment and fine. The sentences nnt..I fines \Vere Jo\ver - than- the-0 maximum that the. Magistrate was cmpo1,veret..I to impose under the Code of Criminal Proce<lurt!. Jn appeal the Sessions Judge acquitted the appel-lants. The State appealed to the High Court under s. 417 Cr. P.C. The High~ Court reversed the orders of the Se)sions Judge anc!. considering the nature of the acts committed hy the appellunts impose<l higher sentences and fines on' them but they \vere still not hiJ.?.ner than what the Magistrate could himself have imposed. Jn uppeal to this Court against the High Court's judgfiicnt it \Vas contended that the Hip:h Court actin,g under s. / 423 (I) (a) is not en1powere<l to impose hi!!her ~entences than the lower court had passed and in anv case not \Vithout notice~to sho\v cause against enhancement.

It wa'i also url!Cd that the High Court could under s. 423 ( 1) (a) pass sentenc'.! "according to Jaw" and thus it did not enjoy the powers which it otherwise might have exercised under s. 31 ( 1) of the Code unde.r which Hi,gh Court may pass "any sentence authorised by law".

HELD : (i) The difference in the wording of s. 3l(I) ands. 23(1) (a) is matter of no moment. The expression 'authorised by Jaw' means sanctioned by law while 'according to law' means jn conformity \vith law. The question to be answered.i in either case remains the same i.e. what is the sentence the High Court is cn1powe1ed to impose after it sets aside an order of acquittal when the same is preceded by sentence of an inferior .court. [232 H]

(ii) An appeal is creature of statute and the power and jurisdiction of the appellate court must be circumscribed by the words of the statute~ At the same time coiirt of aooeal is 'court of error' and its normal function is to correct the decision appealed from if ne.oessary. and its jurisdiction should be co~xtensive With that of the trial court. It cannot and ought not to do something which the trial court was not competent to do. There does not seem to be any 'fetter on its power to do what the trial court could do. Jn this case the trial Magistrate was comoetent to pass sentence o'f imprisonment up to two years and the High Court's jurisdiction hearing an appeal would therefore be limited to sentence up to that period and no more. [233 B]

(iii) Although the Sessions Judge in hearing the appeal against the appellants' conviction could not enhance the sentence the High Court in hearing appeal against the order of acquittal by the Sessions Judge could do so. When the order of the Magistrate. was set aside by the Sessions Judge the matter became one at large and the High Court hearing an appeal therefrom \Vas empowered under s. 423ll) (a) to pass sentence according to law. It could therefore pa~s any sentence which the Magis~ trate trying the case was empowered to pass and the. High Court in the present case did not exceed that limit. [238 A-CJ

The acceptance of the appellant's contention would lead to the strange result that in an appeal against acquittal by the Magistrate the High Court could pass any sentence which the Magistrate was empowered to do but in an appeal against judgment of Sessions Judge setting aside conviction by the Magistrate the High ('ourt's power would be limited to restoring the sentence which the Magistrate had actually passed. Further the Sessions Judg~ would have been entitled to recommend en-hancement of sentence to the High Court if he had maintained the con-viction. And the High Court could suo 111otu have issued notice for enhancement. But on the appellant's contention finality would be attached to the sentence given by the Magistrate. Such .could not be nttached to the sentence given by the Magistrate. Such could not be the scheme of the Code. 1238 <~El (iv) \.Vhen the. accused is given notice of appeal under s. 417 and actually takes part in the hearing before the High Court, it would be superfluous to give him notice to show cause why s-entence within the competence of the trial Magistrate shouid not be passed. The accused knows or ought to know that the High Court V.':.1s bound to form its O\vn conc'1usions OD the material before it and award sentence which the n1erits of the case den1anded within the limit of the trial court's jurisd:ction. The absence of show cause notice does not violate any known principle of natural justice. [238 F-G]

On the above findings the appeal must be dismissed.

In re : Ra111aswan1i Chett_v & Anr. [1902} 2 Weir 487, Muthiah v." E111peror, 29 Madras 190, Sita Ra111 v. E111peror, 11 Indian Cases 788. Mahnnuli Sheik v. Aji Sheik, 21 Calcutta 48, Para111eswara Pi/lay v. E1nperor, 30 r..1ad. 48, Maung E. Maung v. The King, A.LR. 1940 Rang. 118, E111pi:ror v. /\1d. Yakub Ali, 45 Allahabad 594, Laks/1111i11ara.vana v. Apparao, A.I.R. 1950 A.P. 530, Emperor v. Abbas Ali, A.LR. 1935 Nag. 139, Public Prosecutor v. Annanutlai, A.l.R. 1955 Mad. 608, In the Tiru11u1l Raju, A.LR. 1947 Mad. 368, lagar Bahadur Singh v. Stare of Madhya Pradesh, [1966]2 S.C.R. 822 and E111peror v. Abasali Yusufalli, 39 Calcutta 157. referred to.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 79 of 1969.

Appeal by special leave from the judgment and order dated November 21, 1968 of the Bombay High Court in Criminal Appeal No. 818 oi 1967.

R. V. Pillai and Suboc!h Markandey, for the appellants.

H. R. Khanna, B. D. Sharma for S. P. Nayar. for the respon-dent.

The Judgment of the Couh was delivered by

Mitter, J. The six appellants in this appeal were charge-sheeted for having committed offences punishable under ss. 147, 447 and 325 read with s. 149 cf the Indian Penal Code in the court of the Judicial Magistrate, First Class, Deglur, District [';anded. Considering the evidence on record the Magistrate held that the accused were members of an u1nlawful assembly on Sep-tember 27, 1965 at the village school Chotwadi with the comm0n object of causing injuries to the complainant. He also found that the accused had committed house trespass into the compound of the school and actually caused grievous hurt to the complainant. school teacher, in pursuJnce of the common object of their unlawful assembly. He convicted the accused for offences under ss. 147, 447 and 325 read withs. 149 I.P.C. and sentenced each of them to suffer rigorous imprisonment for 15 days and to pay line of Rs. 50/- and in default of payment of fine to suffer further rigorous imprisonment for 15 days on the first co11nt under s. 447 read with s. 149 I.P.C. and sentenced each of them to suffer rigorous imprisonment for six months and to fine of Rs. 200/-or in default c.f payment of fine to suffer further rigorous impri-s"nme1nt for one month on the :econd count under s. 325 read with s. 149 I.P.C. He did not pass any fresh sentence on the third count under s. 147 l.P.C. He directed that the substantive sentences of imprisonment passed against accused on both cou111ts should run concurrently. He also directed that in case the -amount of fine was recovered, Rs. 200 I should be paid to the complainant Murlidhar as compensation for the"injury sustained by him under s. 545 (1) (b) of the Code of Criminal Procedure. The accused went up in appeal wi1ich was heard ythe Additional Sessions Judge at Nanded. The Sessions Judge allowed the ap-peal and set aside the orders of conviction and directed the accused to be set at liberty. The order for paymeint of fine also was set aside. The State went up in appeal against the order ct acquittal to the High Court. The appeal was aJlowed by the High Court and the order of acquittal was set aside. The Hi~h Court con-victed all the six accused under ss. 147, and 447 and 325 read withs. 149 l.P.C. and taking the view that the assault on the village teacher was wanton and unprovoked proceeded to deal with the culprits more firmly tha111 the trying Magistrate. Ir passed sentence on the second accused holding him responsible for the blow which caused the fracture 0f the left ulna of the com-plainant, to one year's rigorous imprisonment and fine of Rs. 300/- and two months' further rigorouq imprisc,nment in default under s. 325 read with s. 149 of the Penal Code. It also held that the remaining accused had played comparatively minor part and injJries inflicted by them were simple. The sentence passed on each of them was six months' rigorous imprisonment aind L2Sup.Cl/70-J fine of Rs. 100 and one month's further imprisonment in default under s. 325 read with s. 149 I.P.C. further sentence of three months' imprisoruneint was passed on all the accused for the offence under s. 447 read with s. 149. No separate sentence was passed under s. 147. This court granted special leave to appeal to the accused "limited to the question of legality of sentence passed by .the High Court." Counsel on behalf of the appellants put forward his argument in two-fold manner. His first contention was that it was not open to the High Court exercising ~;:ipellate jurisdiction under s. 423 ( l )(a) of the Code of Criminal Procedure to enhance the sentence passed by the trial Magistrate. The second branch of. his argument was that even if the High Court was competent to do so. the appellants should have been asked to show cause why the s~ntence imposed on them by the Magistrate should not be enhanced and in the absence of such an opportunity, no enhance-ment of sentence was competent. As ·the trial was by Magistrate of the First Class the maximum sentence which could have been imposed on the accused was under s. 32 of the Code limited to term of imprisonment not exceeding two years and fine not exceeding Rs. 2,000/-. Under the Indian Penal Code the limit of p11;nishment for an offence under s. 447 is imprisorunent for term which may extend to three months or with fine which may extend to Rs. 500/- or with both. but an offence under s. 325 can be punished with imprisonment of either description for tenn which may extend to seven years besides fine.

Under s. 41 7 (I ) of. the Criminal Procedure Code an appeal against acquittal lies only to High Court. Under <. 418 an appeal lies on matter of fact as well as on matter of law except in cases where the trial is by jury. Ss. 419 and 420 deal sith the procedure for lodging an appeal and s. 421 gives the appellate court the power to diS111iss the appeal summarily on receiving the petition of appeal if it considers that there is ~o sufficient ground for interfering with the impugned order. Under s. 422 it is obli-gatory on the appellate court if it does not dismiss the appeal sum-marily to cause notice to be given to the appellant or to his pleader of the time and pince at which the appeal will be heard and like notice to be given to the accused.

The powers of the appellate court in disposing of the appeal are contained in s. 423 of. the Code. The court after giving the notice of appeal under s. 422 has to send for the record of the case and after perusing such record and hearing the appellant or his pleader if he appears and the Public Prosecutor if he appears and in case of appeal under s. 417 the accused if he appears, it may dismiss the appeal in case it is satisfied that there is no sufficient ground

for interfering. Where the appeal is from an order of acquittal it may under s. 423 (I) (a) reverse such order and direct that further enquiry be made or that the accused be re-tried or com-mitted for trial as the case may be and find him guilty and pass sentence on him according to law. No limits are here set to the sentence which may be passed by the appellate court except that it must be "according to law". This power may be contrasted with the power under cl. (b) of s. 423 (I) dealing with appeals from conviction. For such appeals the Legislature specified the powers of the appellate court with good deal of precision. Under sub-clause (b) court can-

"(1) reverse the finding and sentence and acquit or discharge the accused or order him to be tried by court of competent jurisdiction subordinate to such appel-late court or committed for trial, or

(2) alter the finding, maintaining the sentences, or with or without altering the finding reduce the sentence, or

(3) with or without such reduction and with or wilhout altering the finding, alter the nature of the sen-tence but subject to the provisions of s. 106 sub-s, ( 3), not so as to e1nhance the sentence."

It would appear from the above that wide though the powers of the appellate court be in dealing with an appeal from conviction, it has no jurisdiction to enhance the sentence even if it alters the finding, or without alteri,ng the finding takes the view that greater punishment than what was meted is called for.

Sub-cl. (I) ( b) however is not the last word for cl. (lA) intro-duced in the section in the year 1955 expressly provides that High Court exercising jurisdiction under cl. 1 (b) may enhance thi sentence notwithstanding anything inconsistent therewith contained in the said clause provided the accused has had an opportunity of showing cause against such enhancement.

S. 423 cl. (I)( b) is based on the pri,nciple that where it is the convicted person who complains against the punishment given to him, he should not be put in peril of greater punishment if the State takes no exception to the order impugned by the c0iu'victed person. The insertion of cl. ( lA) makes it clear that although the powers of courts subordinate to the High Court are limiul under cl. (1) (b) the High Court may in proper case enhance the sentence after giving an opportunity to the accused to show cause against the proposal.

Apart from the powers under Chapter XXXI of the Code (containing sections 404 to 431) which principally deals with appeals the High Court has powers inter alia of revision under Chapter XXXll of the Code. Under s. 435 not only the High Court but even courts subordinate to it may call for and examine the record of any proceeding before any inferior criminal court for the purpose of satisfying its~!f as "to the correctness legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceeding of such inferior court". S. 439 deals exclusively with the High Court's powers of revision. Under this section the High Court is empowered in the case of any proceeding the record o.f which has been called for by itself or which has been reported for orders or which otherwise comes to its knowledge, to exercise the powers conferred on court of appeal by sections 423, 426, 427 and 428 or on court bys. 338 (power to direct tender of pardon) and may enhance the sentence but sub-s. (2) of the section lays down that such a;n order is not to be made to the prejudice of the accused unless he has an opportuni•y of being heard either personally or by pleader in his own defence. Further when an accused is called upon to show cause why his sentence should not be e1nhanccd he has right to challenge his conviction under sub-s. ( 6).Referring to the above provisions of the Code counsel for the appellants argued that in all cases where it was considered neces-sary the Legislature was careful to provide that the accused should never be subjected to greater punishment by superior court u,nless he was asked to show cause against the proposeu enhance-ment. As there was no such provision in s. 423 (I) ( ~; ihe Legis-lature must be taken to have contemplated that in any case of an appeal against acquittal the accused should nor be subjected to ptJinishment greater than what had been meted out to him by the punishing court. It was also argued that the words ins. 423(1 )(a) empowered the appellate court (the High Court in this case) to pass sentence on the accused according to law which is in contrast to the words used in s. 31 (I) of the Code under which High Court may pass "any sentence authorised by law". It was argued that s. 423 (I) (a) thus cuts down the power which the High Court might otherwise have had u,irder s. 31 (I).

In our view the difference in the wording of s. 31(1) and s. 423( I) (a) is matter of no moment. The expression "autho-rised by law" means sanctioned by law while "according to law" means in conformity with law. The question remains as to what would be sentence according to law when High Court sets aside an order of acquittal when the same is preceded by sentence of an inferior court. Is the High Court empowered to award any sente,nee which the law allows under the relevant section of the

Indian Penal Code. or is its jurisdiction limited to such sentence as was within the competence cf the court punishing the offenders or again, is it to restore the sentence originally passed '?

Let us look at the question apart from the authorities. An "ppeal is creature of statute and the powers and jurisdiction ot the appellate court must be circumscribed by the words of th·" >tatute. At the same time court of appeal is "court of error·· and it; normal function is to correct the decision appealed from and its jurisdiction should be co-extensive with that of the trial court. It cannot and ought not to do something which the trial c0urt was ,not competent to do. There does not seem to be any fetter to its power to do what the trial court could do. In this case the trial Magistrate was competent to pass sentence of impri-sonment up to two years and the High Court's jurisdiction hearing an appeal would therefore be limited to sentence up to that period and no more.

special provision for asking the accused to show cause whein the appeal is from an order of conviction or when the High Court exercises its revisional jurisdiction, is not in derogation of the above rule. As already indicated, when the accused prefers an appeal and the State is satisfied with the punishm~nt meted out it is only logical to hold that the appellant should not stand in peril of something to his further detriment unless he is put on notice that the power of enhancement may be exercised. The same applies to the High Court's power of revision under s. 439. The Legislature felt that when the High Court is exercising powers in this regard, it should be given all the powers of court of appeal including the power to enhance the sentence. Sub-s. (2) of s. 439 is only meant to give an opportunity to the accused so that he be not condemned unheard and sub-s. (6) is only an amplification of that principle and gives him right to challenge his conviction if he is put in peril of enhancement of sentence., Where however the appeal is from an order of acquittal the i11atter is at large. There is no sentence which is bindin<> on person who was once an accused. He comes before the cou;t with the jlresu.mp!ion of innocence. If th~ court finds thM the "cquittal was not 1ustified and that he was gmlty of the offence with which he was c~arged, it is for the .appeal court to order punishment to fit. the cnme. If the appeal is from am order of acquittal with no pnor order of. sentence, the punishment -must be commensurate wah the gravity of the offenc~ .. But if the order of acquittal is preceded J;>y an order of ~onv1ct10n the court hearing the appeal from acqmtta~ should not impose sentence gre'ater than what the -court of fir~t mst~nce could .have imposed inasmuch as if the 'trial cou~t had given him the maximum sentence which it was competent to give and no appeal was preferred by the accused, the St(\te could

not have approached the High Court under any provision of the Code for enhancement of the sentence. The interposition of the order of an intermediate court of appeal and acquittal of the accused by it should not put the accused in predicament worse than that before the trial court.

Code for enhancement of the sentence. The interposition of the order of an intermediate court of appeal and acquittal of the accused by it should not put the accused in predicament worse than that before the trial court. We may now prcceed to examine the earlier authorities. Ill .re Ramaswami Chct1y & Anr. (1) the acticn of the appellate Magis-trate enhancin~ fine c.f Rs. 50· - to Rs. 65. - was held to be illegal hy the ,~adras High Court: In Muthiah v. Emperor(' I it was said that an appellate court has not an unlimited power but was only empowered tG> do which the lower court could and should have dcrnc•. In Siw Ram v. Emperor!·') which went up to the Na~pur .Judicial Commissioner"s court by way of revision. the appellants had b~en convicted under s. 32.:1 I.P.C. and sentenced to rigllrous imprisonment for term of four months each by Magistrate of the Second Class. On appeal the District Magistrate maintained the convictio,ns but altered the sentences on each of the accused to one of line only; and in default rigorous imprisonment was ordered for four months. Before the Judicial Commissioner it was contended that the sente,nce c.f fine imposed on the applicants \\\IS illegal so far as it exceeded the maximum fine which could have been ii1ftict.ed by the Magistrate by whom they were tried. The Court held that when the District Ma!!istrate decided that the case 'Vas one punishable with fine only he" should have inflicted line which was within the jurisdiction of the trying Magistrate. The learned Judge relied on the decisions in Mahmudi Sheik "· Aji Sheik('). Muthiah v. E111peror(''). Parmnes1mra Pi/lay v. Emperor(") and observed that alike in civil and in criminal cases the power of the appellate court was measured by the power of the court from whose judgment or order the appeal before it had been made. The decisions in Maung Maung v. The King('). Emperor v. Md. Yakub Ali(').- Laksh111i11araya11a v. Apparao(") and Emperor v. Abbas Ali("') are on the same lines. different note was however struck in Public Prosecutor v. Annamalai(' ). This was case of an appeal preferred by the State against the acquittal of two accused by Magistrate. The High Court find-G ing the accused guilty took the view that "passing sentence accord-ing to law" meant passing any sentence that could be given for the offeince. According to the learned single Judge the powers

(1) [1902] 2 Weir 487. (3) ti Indian Cases 788

·· (2) 29 Madras 190 (4) 2t Calcutta 48

(5) 29 Madras, 130

(6) 30 Madras 48 (8) 45 Allahabad 594

(7) A.l.R. t 940 Rangoon 118 (9) A.l,R. t950 A. P. 530.

(10) A.l.R. 1935 Nagpur t39

(11) A.l.R. 1965 Madras 608

of an appellate court in hearing an appeal against acquittal were not in any way restricted or limited to the powers of the trial court. He said :

"Though there is no such limitation or restriction. still there is one circumstance which altogether cannot be ignored a!nd which must indeed be considered before imposing the sentence and that is, what is it that the accused would have got if he was convicted by the Magistrate. He would not have got more than six months, the maximum the Second Class Magistrate who tried him can give. The fact that he has been acquitted should not place him in more disadvantageous position th:l!n if he were convicted. The sentence should not therefore be more severe than what he should have got in case of conviction."

Accordingly the. accused were sentenced to six months' rigorous imprisonment. In an earlier decision of the same High Court In re Tirumal Raju (1) another learned single Judge though disposed to accept the contention that the appellate Magistrate had no jurisdiction to enhance the fine beyond the powers of the trial Magistrate, maintained the order sought to be revised by exercis-ing powers under s. 439(3) of the Code. Running through the web of the above decisions the principle almost universally accepted is that in exercise of its appellate powers the High Court should not award sentence which is beyond the jurisdiction of the trial court and in our opinion this is the principle which should be adopted.

Our attentioo. was howe\er drawn to certain observations in Jagat Bahadur Singh v. State of Madhya Pradesh(') where good many of the above authorities were taken note of by this Court. Referring inter alta to the cases of Emperor v. Abasali Yusufalli(3), Emperor v. Muhammad Yakub Ali(') Maung E. Maung v. The King(') and In re Tirumal Raju([6 ]) it was said that these cases laid down the correct law. The Court also added : " .... both on principle and authority it is .... both on principle and authority it is both on principle and authority it is is clear that

" .... both on principle and authority it is .... both on principle and authority it is both on principle and authority it is is clear that the power of the appellate court to pass sentence must be measured by the power of the court from whose judgment an appeal has been brought before it."

The question is, can thiS observation be pressed into serv:'ce by the appellants on the ground that as the Sessions Judge hearing

(!) A.I.R. 1947 Madras 368. (2) [1966] 2 S,C.R. 822. (3) 39 Ca!cntta I 57 (4) 45 Allahabad 594. (5) A.l.R.1940Rangoon 118 (6) A.l.R. 1947 Madras 368

the appeal from the order o.f the Magistrate could not have en-hanced the sentence, it was not open to the High Court to do so when bearing an appeal from the order of acquittal by the Sessions Judge. In other words, could the High Court have done what the Sessions Judge was not empowered to do., In our opinion. the answer must be in the affirmative. When the order of the Ylagistrate was set aside by the Sessions Judge the matter became one at large and the High Court hearing an appeal therefro!Jl was c;upowcred under s. 423 (1 )la) to pass sentence according to law. It could therefore pass any sentence which the Magistrate trying the case was empowered to pass and the High Court in this case did not exceed that limit. strange result would follow if we were to accept the contention. If the accused had been acquitted by the Magistrate and the State had filed an appeal against the order of acquittal, the High Court would no doubt haw had power to impose any sentence, which the Magistrate would have been entitled to impose. But if the accused is acquitted on appeal by the Sessions Judge, the power o.f the High Court would be limited. Surely the Code does not contemplate this difference in the appeals under s. 417 Cr.P.C.

F.urther the Sessi~ns Judge would have been entitled to recom-mend'enhancement of sentence to the High Court if he had main-tained the conviction. And the High Court could suo motu have issued notice for enhancement. If we were to accepUhe conten-tion, finality is attached to the sentence given by the Magistrate. We do not think this is the scheme of the Code. On the other hand the scheme of the Code seems to be to confer final authoritv on the High Court. The first contention therefore fails and we hold that in disposing of an appeal from an order o.f acquittal the High Court is competent to pass sentence which the ·trial court was empowered to pass.

The second branch of the argument is without any merit. Where the accused is given lll.btice of appeal and actually takes part in the hearing before the High Court, it would be superfluous to give him notice to show cause why sentence within the com-petence of the trial Magistrate should not be passed. The accused knows or ought to know that the High Court was bound to form its own conclusions on the material before it 3lll.d award sentence which the merits of the case demanded within the limit of the trial court's jurisdiction. The absence of show cause notice does not violate any known principle of natural justice.

On the facts of the case, we are of the view that the sentence imposed by the High Court should be reduced to that originally imposed by the trial Magistrate.. The appeal is allowed in part to this extent.

Appeal partly allowed.