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Petitioner: U. J. S. CHOPRA VS Respondent: STATE OF BOMBAY
P L D 1956 Supreme Court (Ind
P L D 1956 Supreme Court (Ind.) 89
(Criminal Appellate Jurisdiction)
Present: S. R. Das, Bhagwati and Imam, JJ
U. J. S. CHOPRA
Versus
STATE OF BOMBAY
Criminal Appeal No. 20 of 1954, decided on 25th March 1955, from the Judgment and Order dated the 26th August 1953, of the Bombay High Court in Criminal Revision Application No. 518 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.
Criminal Procedure. Code (V of 1898)---Ss. 439, & 369 Notice issued to show cause against enhancement of sentence on a revision petition filed by Government‑Earlier the appeal dis missed in limine‑Whether appellant entitled to show cause against his conviction under S. 439 (6)‑Whether S. 369 a bar.
The appellant was convicted by the Presidency Magis trate. He appealed to the High Court which was summarily dismissed under section 421 of the Criminal P. C. The Government, after the dismissal of appeal, made a revision application to the High Court for enhancement of the sentence on which notice was issued to the appellant under section 439 (2) of the Criminal P. C. to show cause against the enhancement. It was contended by the appellant who appeared to show cause against enhancement that under section 439 (6) he was entitled to show cause against his conviction as well. The High Court neither permitted him to do so nor at the same time enhanced the sentence.
Held, that dismissal of an appeal or revision under sec tion 421. of the Code of Criminal Procedure does not deprive the appellant of the right to show cause against his conviction under .section 439 (6) of the Code of Criminal Procedure when subsequently a notice is Issued to him to show cause why the sentence imposed on him should, not be enhanced.
Per Das, J.‑--Summary dismissal of 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 enhancement of sentence. However as soon as the Government applied for enhancement and a notice was issued to the appellant he became entitled under section 439 (6) to challenge his conviction again. This subsection gives a new and valuable weapon of defence to an accused person who is placed in fresh jeopardy by reason of an enhancement application. There is nothing in sections 439 (6) and 430 of the Criminal P. C. to cut down that right. The prior dismissal of the appeal has 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. The argument adopted by the Lahore Full Bench case (1943) I L R 25 Lah. 391 was not acceptable where it' was held that a summary dismissal of a revision appli cation filed by the accused must be regarded as an order made under section 435 and not under section 439 and 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. There is nothing in principle which should prevent subsection (6) of section 439 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.
Per Bhagwati and Imam, JJ.‑--Summary dismissal under section 421 of the Code of Criminal Procedure in the exer cise of appellate or revisional jurisdiction is not a judgment pronounced after full hearing ill the presence of both the parties on consideration of the evidence and full arguments. What the Court' does in such a case is to refuse to entertain the appeal or the revision. Notice of enhance ment of sentence cannot be issued by the High Court when a judgment is pronounced after issue of notice and after full hearing of the appeal or revision in the presence of the parties. Such a notice can be issued when the judgment of the lower Court subsists and is not replaced by a judgment of the High Court after a full bearing of the case in the presence of the parties. Notice can, however, be issued before the High Court announces its judgment replacing that of the lower Court, therefore the High Court should arrive at a decision before the judgment is pronounced whether a notice for enhancement of sentence should be issued or not.
I L R (1908) 32 Bom. 162 ; A I R 1929 Lah. 584 ; I L R (1929) 10 Lah. 241, A I R 1934 Bom. 471, A.I R 1939 Rang. 392, 1 L R (1924) 49 Bom. 450, A I R 1927 Bom. 666, A I R 1936 Sind 233, I L R (1945) All. 527, I L R (1930) 54 Bom. 822, A 1 R 1933 All. 485, A I R 1942 All. 339, 1 L R (1952) 2 Rajs. 716, A I R 1925 Mad. 993, I L R (1927) 8 Lah. 521, A I R 1927 Sind 39, A I R 1929 Sind 26, A I R 1942 All. 339, I L R (1943) 25 Lah. 391, L R (1891) A C 173 at p. 179, P L D 1950 Lah. 479=Pak. L R (1950) Lah. 803, I L R (1926) 50 Dom. 783, (1930) 32 Born. L R 1286 ; (1934) 36 Bom. L R 954, I L R 1945 All. 527, I L R (1931) 10 Pat. 872, I L R (1943) 25 Lah. 391 (F B) ; (1945) 48 Bom. L R 41 (F B) ; I L R (1928) 10 Lah. 241, I L R (1943) 25 Lah. 391 (F B); 1951 S C R 344, I L R (1905) 29 Mad. 126, A I R 1939 F C 43, I L R (1908) 31 Mad. 543 ; (1924) 27 Bom. L R 355 ; I L R (1937) All. 308 ; 35 Bum. L R 174 ; 33 C W N 599 and I L R (1934) 12 Rang. 616 ref.
S. P. Verma for Appellant.
M. C. Setalved Attorney‑General for India (Porus A. Mehta and P. G. Gokhale, with him) for Respondent.
Date of hearing : 25th March 1955.
JUDGMENT
DAS, J.‑----The appellant before us was on the 9th Decem ber 1952 convicted by the Presidency Magistrate. 13th Court, Bombay, of an offence under section 66 (b) of the Bombay Prohibition 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 riot permit hint to do.' The High Court, however, did not think fit to make' any order for enhancement of sentence. On an applica tion 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 Proce dure 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 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 Revi sion 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 enter tained 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 subsection (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 subsection (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 under gone 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 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, however, 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 ((1908) I L R 32 Bom. 162). Then came Act XVIII of 1923 which, by section 119, amended section 439 by adding the present subsection (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 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 appellate 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. Subsection (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 interest ed: 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 subsection (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 subsection (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 subsection (2) to the accused person .to show cause and whenever such notice is issued the accused person must, under subsection (6), be given an opportunity, in showing cause against enhancement, also to show cause against his conviction. The subsection does not say that be 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 heaping 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 subsection (1) or by way of defending himself when the State or other interested person applies to the High Court in revision under section 439 (I) for enhancement of sentence, and a notice is issued on him under section 439 (2). (See Kala v. Emperor (AIR 1929 Lah. 584)), 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 re‑examined by the High Court in the context of this new jeopardy, irrespective of anything that might have happened prior to the application for enhance ment of sentence and the issuing of the notice on the accused to show cause, Indeed, there is, in subsection (6) itself, an indication in that behalf. This subsection is to rate "notwithstanding anything contained in this section In some of the decisions (e.g. Emperor v. Jorabhai ((1926) I L R 50 Bom. 785); Crown v. Dhanna Lal ((1929) I L R 10 Lah. 241), Emperor v. Inderchand (A I R 1934 Bom. 471) and King v. Nga Ba Saing (A I R 1939 Rang. 392)) it has been said that the non obstante clause refers only to subsection (5). I find it difficult to accept this limited construction as correct. Subsection (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 oilier words, subsection (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 subsection precludes such a person from initiating proceedings by way of revision. When the accused person under subsection (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 enhancement and a notice has been issued on him under subsection (2). In such a situation the accused person 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 subsection (5), is enjoined not to entertain. Strictly speaking subsection (6) needs no exemption from sub section (5). In any event and assuming that the act of showing cause against his conviction under subsection (6) is tantamount to an application in revision initiated by him and such application is saved from the operation of subsection (5) by the non obstante clause of subsection (6) I do not sees any reason for holding that the non obstante clause of sub section (6) is concerned only with subsection (5). Although in showing cause against his conviction under subsection (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 hast, a continuation and indeed an integral part of the proceeding 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, subsection (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 subsection (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 pause against his conviction. Under subsection (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 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 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 same 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 subsection (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 subsection (1). It may well be that the nun obstante clause in subsection (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 subsection (6) is to be regarded as a revision there was nothing to prevent the Legislature, in the interest of the liberty of the 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 subsection (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 subsection (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 subsection (6), to show cause against his conviction, irrespec tive of anything that may have happened previously. That is how I read the subsection. Indeed, in Emperor v. Mangal Naran ((1924) I L R 49 Bom. 450) 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 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 subsection (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 Session 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 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 subsection (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 ((1931) I L R 10 Pat. 872) 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 (A I R 1927 Bom. 666), Emperor v. Haji Khamoo (A I R 1936 Sind 233), King v. Nga Ba Saing (supra), Emperor v. Naubat (I L R 1945 All. 527), to cases where the jail appeal of the accused had previously been dismissed summarily without hearing the accused or his advocate (See Emperor v. Soya . Partab ((1930) I L R 54 Bom, 822), Emperor v. Abdul Qayum (A I R 1933 All. 485), Ramchand v. Hiralal (A I R 1942 All. 339) and State v. Bhawani Shanker (I L R 1952 2 Rajas. 716) and to cases of dismissal of revision petition filed by the accused after hearing the advocate (See In re : Sayed Anif Sahib (A I R 1925 Mad. 993), Emperor v. Sher Singh ((1927) I L R 8 Lah. 521), Crown v. Dhanna Lal (supra) and also to the case of an accused whose revision petition has been summarily dismissed (See Emperor v. Inderchnnd (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…
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