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, 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 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
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
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
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
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
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
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
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
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
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
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
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
(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
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
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
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
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
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
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
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
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
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
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
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
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
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,
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-
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
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
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
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
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
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
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
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
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
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
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
(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
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
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
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.