{"id":232303,"date":"1955-03-25T00:00:00","date_gmt":"1955-03-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/u-j-s-chopra-vs-state-of-bombay-on-25-march-1955"},"modified":"2016-09-04T12:53:55","modified_gmt":"2016-09-04T07:23:55","slug":"u-j-s-chopra-vs-state-of-bombay-on-25-march-1955","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/u-j-s-chopra-vs-state-of-bombay-on-25-march-1955","title":{"rendered":"U.J.S. Chopra vs State Of Bombay on 25 March, 1955"},"content":{"rendered":"
Supreme Court of India<\/div>\n
U.J.S. Chopra vs State Of Bombay on 25 March, 1955<\/div>\n
Equivalent citations: 1955 AIR 633, \t\t 1955 SCR (2)\t 94<\/div>\n
Author: S R Das<\/div>\n
Bench: Das, Sudhi Ranjan<\/div>\n
           PETITIONER:\nU.J.S. CHOPRA\n\n\tVs.\n\nRESPONDENT:\nSTATE OF BOMBAY.\n\nDATE OF JUDGMENT:\n25\/03\/1955\n\nBENCH:\nDAS, SUDHI RANJAN\nBENCH:\nDAS, SUDHI RANJAN\nBHAGWATI, NATWARLAL H.\nIMAM, SYED JAFFER\n\nCITATION:\n 1955 AIR  633\t\t  1955 SCR  (2)\t 94\n\n\nACT:\nCriminal  Procedure  Code,  1898 (Act V\t of  1898),  s.\t 439\n(1)(2)(6)  -Appellant convicted by Magistrate-His appeal  to\nHigh  Court dismissed summarily-After summary  dismissal  of\nthat appeal State Government filed revision application\t to.\nHigh  Court  for enhancement of sentence  Notice  issued  to\nappellant to show cause against enhancement under s. 439(2)-\nWhether\t appellant  entitled  to  show\tcause  against\t his\nconviction under s. 439(6) of Code of Criminal Procedure.\n\n\n\nHEADNOTE:\nThe appellant in this appeal was convicted by the Presidency\nMagistrate,  Bombay,  of an offence under s.  66(b)  of\t the\nBombay\tProhibition Act (Act XXV of 1949) and  sentenced  to\nundergo imprisonment till the rising of the court and to pay\na  fine\t of  Rs.,  250 or in  default  to  undergo  rigorous\nimprisonment  for one month.  He preferred an appeal to\t the\nHigh Court at Bombay, which was summarily dismissed.   After\nthe  dismissal\tof that appeal, the State of Bombay  made  a\nrevision   application\tto  the\t High  Court   praying\t for\nenhancement  of\t the  sentence.\t Notice was  issued  to\t the\nappellant under s. 439(2) of the Code of Criminal  Procedure\nto show cause against enhancement.\n95\nHeld  that the summary dismissal of the appeal preferred  by\nthe appellant did not preclude him from taking advantage  of\nthe  provisions\t of  s.\t 439(6)\t of  the  Code\tof  Criminal\nProcedure  and showing cause against his conviction when  he\nwas subsequently called upon to show cause why the  sentence\nimposed on him should not be enhanced.\n  Per  DAS J.-Sub-section (6) of section 439 of the Code  of\nCriminal Procedure confers a new and a valuable right on the\naccused.  The language used in sub-section (6) does not,  in\nterms, place any fetter on the right conferred by it on\t the\naccused.  This new right is not expressed to be\t conditioned\nor  controlled by anything that may have happened  prior  to\nthe   revision\t application  under  sub-section   (1)\t for\nenhancement  of sentence.  Therefore, whenever there  is  an\napplication for enhancement of sentence, a notice must issue\nunder  sub-section (2) to the accused person to\t show  cause\nand whenever such notice is issued, the accused person must,\nunder  sub-section (6), be given an opportunity, in  showing\ncause  against enhancement, also to show cause\tagainst\t his\nconviction.\nIt is not correct to say that sections 421, 435 & 439 of the\nCode give the court a discretion not to decide the appeal or\nrevision brought before it.  The discretion conferred on the\nHigh  Court  does not authorise it to say that it  will\t not\nlook at the appeal or revision. The Court's bounden duty  is\nto look into the appeal or revision and decide it,  although\nin  the\t process of arriving at its decision it has  a\tvery\nwide discretion.\nThere  is  no reason for holding that there is a  merger  or\nreplacement  of the Judgment of the trial Court into  or  by\nthe  Judgment  of  the High Court only when  the  appeal  or\nrevision  is  heard on notice to the respondent\t and  either\nallowed wholly or partially or dismissed but not when it  is\nheard  without\tnotice\tto  the\t respondent  and   dismissed\nsummarily;  for this purpose it makes no difference  whether\nthe  dismissal\tis  summary or otherwise,  and\tthere  is  a\njudgment of the High Court in all the three cases.  The only\ndifference  in substance is that in the first two cases\t the\njudgment is final qua both parties while in the third  case,\ni.e., when an appeal or revision by the accused is summarily\ndismissed without issuing notice to the State, the  judgment\nis  final only qua the accused who preferred the  appeal  or\nrevision.   This is based not on any technical\tdoctrine  of\nres  judicata, for there is none in criminal cases,  but  on\nthe general principle of finality of judgment.\tIn the first\ntwo  cases  there  can, after the judgment,  be\t no  further\napplication  by\t the State for enhancement of  sentence\t and\ntherefore  no question of the application of section  439(6)\ncan  arise.   In  the last case, i.e., in  case\t of  summary\ndismissal  the Judgment not being final qua the\t State,\t the\nState  may apply for enhancement of sentence and if it\tdoes\nthe accused becomes entitled again to show cause against his\nconviction  also  by  reason of the  special  provisions  of\nsection 439(6).\nPer BHAGWATI and IMAM JJ.-A Judgment pronounced by the\tHigh\nCourt in the exercise of its appellate or revisional\n96\njurisdiction  after issue of a notice and a full hearing  in\nthe presence of both the parties would certainly be  arrived\nat after due consideration of the evidence and all arguments\nand  would therefore be a final judgment and  such  judgment\nwhen  pronounced  would replace the judgment  of  the  lower\ncourt,\tthus  constituting  the only final  judgment  to  be\nexecuted  in accordance with law by the court  below.\tWhen\nhowever a petition of appeal presented by a convicted person\nfrom jail is summarily dismissed under s. 421 or a  revision\napplication made by him is dismissed summarily or in  limine\nwithout hearing him or his pleader what the High Court\tdoes\nin  such  a case is to refuse to entertain the\tpetition  of\nappeal\tor the revision application and the order passed  by\nthe High Court dismissed  or rejected\" cannot be said to  be\nan  expression of the opinion of the court arrived at  after\ndue consideration of the evidence and all the arguments.\nNo  notice for enhancement of sentence can be issued by\t the\nHigh Court when a judgment is pronounced by it after a\tfull\nhearing\t in  the  presence of both  the\t parties  either  in\nexercise  of its appellate or its  revisional  jurisdiction.\nSuch notice for enhancement of sentence can be issued by  it\neither\tsuo motu or at the instance of an  interested  party\nwhen  the  judgment of the lower court subsists and  is\t not\nreplaced  by its own judgment given in the exercise  of\t its\nappellate or revisional jurisdiction.  When the Judgment  of\nthe lower court has been under its scrutiny on notice  being\nissued to the opposite party and on a full hearing  accorded\nto  both the parties notice for enhancement of sentence\t can\nonly  be  issued  by it before it  pronounces  its  judgment\nreplacing that of the lower court.  When such hearing is  in\nprogress it is incumbent upon the High Court or the opposite\nparty to make up its mind before the judgment is  pronounced\nwhether a notice for enhancement of sentence should issue to\nthe accused.\nCase-law discussed.\n\n\n\nJUDGMENT:\n<\/pre>\n
CRIMINAL APPELLATE JURISDICTION: Criminal
\nAppeal No. 20 of 1954.\n<\/p>\n
Appeal\tfrom the Judgment and Order dated the  26th  August,
\n1953,  of  the\tBombay\tHigh  Court  in\t Criminal   Revision
\nApplication No. 51 8 of 1953 arising out of the Judgment and
\nOrder  dated  the  9th\tDecember,  1952,  of  the  Court  of
\nPresidency Magistrate, Bombay, in Case No. 3442\/P of 1952.
\nS.   P. Verma, for the appellant.\n<\/p>\n
M.   C. Setalvad, Attorney-General for India (Porus A. Mehta
\nand P. G. Gokhale, with him), for the respondent.\n<\/p>\n
97<\/span><\/p>\n
1955.  March 25.  The following Judgments were delivered.
\nDAS J.-The appellant before us was on the 9th December, 1952
\nconvicted by the Presidency Magistrate, 13th Court,  Bombay,
\nof an offence under section 66(b) of the Bombay\t Prohibition
\nAct (Act XXV of 1949) and sentenced to undergo\timprisonment
\ntill the rising of the Court and to pay a fine of Rs. 250 or
\nto  undergo  rigorous  imprisonment  for  one  month.\t The
\nappellant   preferred  an  appeal  to  the  High  Court\t  of
\nJudicature at Bombay but his appeal was summarily  dismissed
\nby  a Bench of that Court on the 19th January  1953.   After
\nthe  dismissal\tof that appeal the State of  Bombay  made  a
\nCriminal   Revision  application  to  the  High\t Court\t for
\nenhancement  of the sentence.  Notice having been issued  to
\nthe  appellant under section 439(2) of the Code of  Criminal
\nProcedure,  learned  counsel for the appellant\tclaimed\t the
\nappellant’s right under section 439(6) to show cause against
\nhis  conviction.  This the High Court did not permit him  to
\ndo.  The High Court, however, did not think fit to make\t any
\norder  for enhancement of sentence.  On an application\tmade
\non  behalf  of the appellant the High Court  of\t Bombay\t has
\ngiven  leave  to the appellant to appeal to this  Court\t and
\ngranted a certificate of fitness under article 134(1) (c) of
\nthe Constitution of India.\n<\/p>\n
The question for our consideration in this appeal is whether
\nthe  summary  dismissal\t of  the  appeal  preferred  by\t the
\nappellant  precluded  him  from\t taking\t advantage  of\t the
\nprovisions  of\tsection\t 439(6)\t of  the  Code\tof  Criminal
\nProcedure when he was subsequently called upon to show cause
\nwhy  the sentence imposed upon him should not  be  enhanced.
\nThe question depends for its answer upon a true construction
\nof section 439.\t That section, so far as it is material\t for
\nour present purpose, reads as follows:-\n<\/p>\n
“439. (1) In the case of any proceeding the record of  which
\nhas been called for by itself or which has been reported for
\norders, or which otherwise comes to its knowledge, the\tHigh
\nCourt may, in its discre-\n<\/p>\n
13<\/span>
\n98<\/span><\/p>\n
tion,  exercise\t any of the powers conferred on a  Court  of
\nAppeal\tby sections 423, 426) 427 and 428 or on a  Court  by
\nsection\t 338,  and may enhance the sentence;  and  when\t the
\nJudges\tcomposing the Court of Revision are equally  divided
\nin  opinion,  the case shall be disposed of  in\t the  manner
\nprovided by section 429.\n<\/p>\n
(2)  No\t order\tunder  this section shall  be  made  to\t the
\nprejudice of the accused unless he has had an opportunity of
\nbeing  heard  either  personally or by pleader\tin  his\t own
\ndefence.\n<\/p>\n
(3)…………………………………………………………….
\n…..\n<\/p>\n
(4)…………………………………………………………….
\n……\n<\/p>\n
(5)  Where  under this Code an appeal lies and no appeal  is
\nbrought,  no  proceedings  by  way  of\trevision  shall\t  be
\nentertained  at\t the instance of the party  who\t could\thave
\nappealed.\n<\/p>\n
(6)Notwithstanding  anything contained in  this\t section,any
\nconvicted person to whom an opportunity has been given under
\nsub-section (2) of showing cause why his sentence should not
\nbe  enhanced  shall, in showing cause, be entitled  also  to
\nshow cause against his conviction”.\n<\/p>\n
For  a correct appreciation of the real meaning, import\t and
\nscope of the provisions of sub-section (6) of section 439 it
\nwill be necessary to bear in mind its historical background.
\nIn England there is no provision for an appeal by the  Crown
\neither against an order of acquittal or for the\t enhancement
\nof  sentence.\tThere the person convicted has\ta  right  of
\nappeal both against his conviction and the sentence  imposed
\nupon him.  Under the English criminal procedure,  therefore,
\nthe  question of enhancement of sentence only  comes  before
\nthe Court of Criminal Appeal when there is an appeal by\t the
\nconvicted accused.  In this country the provisions  relating
\nto  the\t Court’s  power\t of  enhancement  of  sentence\thave
\nundergone radical changes from time to time.  Section 407 of
\nthe  Code of Criminal Procedure, 1861 prohibited any  appeal
\nfrom  acquittal.  Express power was given to  the  appellate
\nCourt to reduce the sentence (sections 425 and 426) and like
\npower  was given to the Sudder Court as a Court of  revision
\n(sections 405 and 406). I find no provision
\n99<\/span>
\nin  that  Code authorising the Sudder Court to\tenhance\t the
\nsentence.  The Code of Criminal Procedure of 1872,  however,
\nby  section 272 permitted the Government to file  an  appeal
\nfrom  acquittal.   This was repeated in section 417  of\t the
\nCode of 1882 which corresponds to section 417 of the present
\nCode.  Section 280 of the Code of 1872 expressly  authorised
\nall appellate Courts to enhance the sentence.  This power of
\nenhancement,  however,\twas taken away\tfrom  the  appellate
\nCourts by section 423 of the Code of 1882 now reproduced  in
\nsection\t 423 of the present Code and was vested in the\tHigh
\nCourt under section 439 of the Code of 1882 to be applied in
\nexercise  of its revisional power.  This has been  continued
\nin our present section 439.  This shows that the Legislature
\nthought\t that this extraordinary power should  be  exercised
\nonly by the High Court and no other Court.  A practice, how-
\never,  appears\tto  have grown up that in  cases  coming  up
\nbefore\tit  for\t enhancement  of  sentence  the\t High  Court
\naccepted  the  conviction  as conclusive  and  proceeded  to
\nconsider  the  question of enhancement of sentence  on\tthat
\nbasis. (See Emperor v. Chinto Bhairava (1)).  Then came\t Act
\nXVIII of 1923 which, by section 119, amended section 439  by
\nadding the present sub-section (6) and also amended  section
\n369 by substituting the words “save as otherwise provided by
\nthis  Code or by any other law for the time being in  force,
\nor,  in\t the  case  of a High  Court  established  by  Royal
\nCharter, by the Letters Patent of such High Court, no Court”
\nfor the words “No Court other than a High Court” with  which
\nthe   section  formerly\t opened.   The\tresults\t  of   these
\namendments  were  (i) to make the judgment or order  of\t the
\nHigh  Court  passed  in exercise of  its  original  criminal
\njurisdiction final which it was not under section 369 as  it
\noriginally  stood and to make this finality subject  to\t the
\nother provisions of the Code or of the Letters Patent of the
\nHigh  Court  and (ii) to nullify the  practice\treferred  to
\nabove and to give a statutory right to an accused person who
\nwas threatened with the risk of having the sentence  imposed
\non him by the trial Court or the lower appel-\n<\/p>\n
(1)  [1908] I.L.R. 32 Bom. 162.\n<\/p>\n
100<\/span><\/p>\n
late  Court  enhanced by the High Court in exercise  of\t its
\nrevisional  jurisdiction suo motu or at the instance of\t the
\nState  or in exceptional cases even of any other  interested
\nperson.\t  Sub-section  (6), therefore, confers a new  and  a
\nvery valuable right on the subject which is designed to be a
\nsafeguard  against  the\t State or  other  interested  person
\nmaking\tfrivolous  revision application for  enhancement  of
\nsentence.  The State or the person interested must, if\tthey
\nask for an enhancement of sentence, be prepared to face\t the
\nrisk  of the accused being altogether acquitted.  It is\t the
\nprice  or quid pro quo which the State or  other  interested
\nperson must be prepared to pay for the right or privilege of
\nmaking\tan  application for enhancement\t of  sentence.\t The
\nlanguage  used in sub-section (6) does not, in terms,  place
\nany  fetter  on the right conferred by it  on  the  accused.
\nThis  new  right  is  not expressed  to\t be  conditioned  or
\ncontrolled  by anything that may have happened prior to\t the
\nrevision  application under sub-section (1) for\t enhancement
\nof  sentence.  The section quite clearly says that  whenever
\nthere is an application for enhancement of sentence a notice
\nmust  issue under sub-section (2) to the accused  person  to
\nshow  cause and whenever such notice is issued\tthe  accused
\nperson must, under sub-section (6), be given an opportunity,
\nin  showing  cause against enhancement, also to\t show  cause
\nagainst\t his conviction.  The sub-section does not say\tthat
\nhe will have this right to show cause against his conviction
\nonly  if he has not already done so.  If the accused  person
\nappealed against his conviction and sentence to an appellate
\nCourt  not being a High Court and lost that appeal  after  a
\nfull  hearing  in the -presence of his opponent it  must  be
\nconceded  that\the  has had an\topportunity  to\t show  cause
\nagainst\t his  conviction but nobody will contend  that\tthat
\ncircumstance   will   prevent  him   from   having   another
\nopportunity  of\t showing cause against\this  conviction\t and
\nsentence  either by a substantive application  initiated  by
\nhimself under sub-section (1) or by way of defending himself
\nwhen  the  State or other interested person applies  to\t the
\nHigh Court in revision under section 439(1) for\t enhancement
\nof
\n101<\/span>
\nsentence and a notice is issued on him under section 439(2).
\n(See  Kala  v.\tEmperor(1)).  Enhancement  of  sentence\t  is
\nundoubtedly an encroachment upon the liberty of the  subject
\nand  a\tvery serious matter for an accused  person  and\t the
\nLegislature may quite properly have thought that whenever an
\naccused\t person\t is sought to be laid open to  the  risk  of
\nhaving\this sentence enhanced, the question of the  legality
\nand propriety of his conviction should be reexamined by\t the
\nHigh Court in the context of this new jeopardy, irrespective
\nof   anything  that  might  have  happened  prior   to\t the
\napplication  for enhancement of sentence and the issuing  of
\nthe notice on the accused to show cause.  Indeed, there\t is,
\nin  sub-section\t (6) itself, an indication in  that  behalf.
\nThis  sub-section  is to operate  “notwithstanding  anything
\ncontained in this section”.  In some of the decisions  (e.g.
\nEmperor\t v. Jorabhai(2), Crown v. Dhanna Lal(3), Emperor  v.
\nInderchand(4) and King v. Nga Ba Saing(5)) it has been\tsaid
\nthat the non obstante clause refers only to sub-section (5).
\nI  find it difficult to accept this limited construction  as
\ncorrect.   Sub-section\t(5) only says that where  an  appeal
\nlies  and  no appeal is brought, no proceedings\t by  way  of
\nrevision  shall be entertained at the instance of the  party
\nwho could have appealed.  The idea is that if a person has a
\nright of appeal he must first pursue that remedy.  In  other
\nwords,\tsub-section  (5)  is  a\t disabling  provision.\t  By
\nproviding  that no proceedings by way of revision  shall  be
\nentertained at the instance of a person who, having a  right
\nof  appeal,  does not avail himself of it,  the\t sub-section
\nprecludes  such a person from initiating proceedings by\t way
\nof revision.  When the accused person under sub-section\t (6)
\nshows  cause against his conviction he himself initiates  no
\nproceedings  but  only\texercises the right  to\t show  cause
\nagainst\t his  conviction  which\t is  given  to\thim  because
\nsomebody else has taken proceedings against him for enhance-
\nment  and a notice has been issued on him  under  subsection
\n(2).  In such a situation the accused person
\n(1)  A.I.R. 1929 Lah. 584.\n<\/p>\n
(2)  [1926] I.L.R. 50 Bom. 785.\n<\/p>\n
(3)  [1929] I.L.R. 10 Lah. 241.\n<\/p>\n
(4)  A.I.R. 1934 Bom. 471.\n<\/p>\n
(5) A.I.R. 1939 Rang. 392,
\n102<\/span>
\nis  on\tthe defensive and the act of showing  cause  against
\nproceedings initiated against him cannot properly be said to
\nbe,  proceedings “at his instance” which the High Court,  by
\nsub-section  (5),  is enjoined not to  entertain.   Strictly
\nspeaking sub-section (6) needs no exemption from sub-section
\n(5).   In  any event and assuming that the  act\t of  showing
\ncause against his conviction under sub-section (6) is tanta-
\nmount  to  an application in revision initiated by  him\t and
\nsuch application is saved from the operation of\t sub-section
\n(5)  by the non obstante clause of sub-section (6) 1 do\t not
\nsee  any reason for holding that the non obstante clause  of
\nsub-section  (6)  is concerned only  with  sub-section\t(5).
\nAlthough in showing cause against his conviction under\tsub-
\nsection (6) the accused person can urge all that he could do
\nin  an\tappeal, if not more, this act of showing  cause\t is,
\nnevertheless, in form at least, a continuation and indeed an
\nintegral  part of the proceedings in revision  initiated  by
\nthe  Court suo motu or by the State or any other  interested
\nparty.\tThe general rule is that the exercise of  revisional
\npower  is  entirely a matter of discretion which  is  to  be
\nexercised  by the High Court not capriciously but  on  sound
\njudicial  principles.  Indeed, sub-section (1)\titself\tlays
\nstress\ton this aspect of the matter by the use\t therein  of
\nthe words “in its discretion”.\tThe non obstante clause\t may
\nwell  have  been designed to emphasise that  the  new  right
\nconferred  by sub-section (6) is a matter of right and\tdoes
\nnot rest entirely on mere discretion of the Court.   Further
\nthe non obstante clause has a special significance even in a
\ncase   where   the  accused  person  has  already   had\t  an
\nopportunity, by means of an appeal or revision filed by\t him
\nin  the\t High Court, to show cause against  his\t conviction.
\nUnder  sub-section (1) there can be a revision only  of\t the
\njudgment  or order of Criminal Courts inferior to  the\tHigh
\nCourt and it does not sanction any revision of the  judgment
\nor  order  of the High Court itself.  Therefore,  where\t the
\naccused person has unsuccessfully challenged the legality or
\npropriety  of  his  conviction\tin  an\tappeal\tor  revision
\napplication made by him before the High
\n103<\/span>
\nCourt  he  cannot again initiate a  substantive\t application
\nbefore\tthe High Court under section 439(1) of the  Code  to
\nre-examine  his conviction or sentence, for that will be  to
\nask the Court to revise its own previous judgment or  order,
\nwhich  the High Court cannot do under section  439(1).\t But
\nsuppose\t that  the  dismissal  of  the\tappeal\tor  revision
\napplication  made  by  the  accused  takes  place  in\tsuch
\ncircumstances  that it still leaves it open to the State  or
\nother interested person to apply in revision for enhancement
\nof  the sentence and proceedings are initiated by the  Court
\nor  the\t State\tfor enhancement of  sentence  under  section
\n439(1)\tand  notice is issued on the accused  under  section
\n439(2), there is nothing in subsection (6) which, in  terms,
\nprevents the accused, in that situation, to again show cause
\nagainst his conviction and sentence.  The only argument that
\nmay, in those circumstances, be advanced with some semblance
\nof  plausibility is that to let the accused person to  again
\nchallenge  his conviction or sentence under sub-section\t (6)
\nis  to cut across the provisions of sub-section (1)  and  in
\neffect to permit the accused to ask the High Court to revise
\nits  previous  order, although\tno  substantive\t application
\ncould be initiated by him under sub-section (I). It may well
\nbe that the non obstante clause in sub-section (6) was\talso
\ndesigned to negative such an argument.\tAlthough  ordinarily
\nno  substantive application can be initiated by\t an  accused
\nperson,\t whose appeal or revision application has once\tbeen
\ndismissed by the -High Court. for revision or review of that
\norder  of dismissal, I can find no difficulty in  construing
\nand reading section 439(6) as giving to the accused  person,
\nwho is faced with the risk of having his sentence  enhanced,
\na second opportunity to do what he had previously failed  to
\ndo.  In other words, I see no incongruity in the Legislature
\ngiving\ta new right of revision to the accused person  as  a
\nweapon of defence in the context of a new offensive taken by
\nthe  State  against him.  Even if the act of  showing  cause
\nunder sub-section (6) is to be regarded as a revision, there
\nwas  nothing to prevent the Legislature, in the interest  of
\nthe liberty of the
\n104<\/span>
\nsubject,  to provide for a limited right of revision of\t the
\njudgment or decision or order of the High Court itself.\t  In
\nmy judgment that is what the Legislature has done by  adding
\nsub-section (6) to section 439 and the non- obstante  clause
\nis  intended  to  meet\tand repel  the\tobjection  that\t may
\npossibly  have\tbeen  taken on the score  that,\t under\tsub-
\nsection\t (1), there can be no revision by the High Court  of
\nits own order.\tIn my opinion, so long as proceedings may be
\ntaken  against\tthe accused person for\tenhancement  of\t his
\nsentence and so long as notice may be issued on him to\tshow
\ncause against enhancement, so long must he have, in  showing
\ncause against enhancement of sentence, the right, under sub-
\nsection\t  (6),\tto  show  cause\t against   his\t conviction,
\nirrespective of anything that may have happened\t previously.
\nThat  is how I read the sub-section.  Indeed, in Emperor  v.
\nMangal\tNaran(1) McLeod, C. J., went further  and  expressed
\nthe  view  that if, after an appeal had been  heard  on\t its
\nmerits\tand  dismissed,\t a notice to  enhance  sentence\t was
\nissued, the accused would still have the right to show cause
\nagainst his conviction although any attempt to set aside his
\nconviction  would  not\thave much chance  of  success.\t For
\nreasons\t to be stated hereafter I would rather say  that  in
\nsuch a situation no application for enhancement would lie at
\nall  and  that consequently no question would arise  of\t the
\naccused\t person exercising his right under sub-section\t(6).
\nThis  aspect of the matter that I am trying to indicate\t and
\nemphasise does not appear to have been sufficiently adverted
\nto in the subsequent decisions of the different High  Courts
\nin  India  except  in one decision of a Full  Bench  of\t the
\nLahore\tHigh Court.  It will be convenient at this stage  to
\nrefer to those decisions.\n<\/p>\n
In  Emperor  v.\t Jorabhai (supra)  the\taccused\t person\t was
\nconvicted by the Sessions Judge.  He preferred an appeal  to
\nthe  High Court and a Bench of the High Court dismissed\t the
\nappeal\ton  merits after full hearing of  both\tsides  after
\nnotice\tof appeal had been served on the State.\t  After\t the
\ndelivery of the judgment an oral application was made to the
\nBench by
\n(1)  [1924] I.L.R. 49 Bom. 450.\n<\/p>\n
105<\/span><\/p>\n
the Government pleader for the enhancement of the  sentence.
\nNotice was issued to the accused under section 439(2) of the
\nCode.  The accused claimed the right, under sub-section\t (6)
\nto  challenge  his conviction.\tIt was held by\tFawcett\t and
\nMadgavkar,  JJ.,  that section 439(6) did not  justify\twhat
\nwould be tantamount to a rehearing of the appeal on merits.
\nIn  the\t case  of  Ramlakhan  Chaudhury\t v.  Emperor(1)\t the
\naccused’s appeal had been previously dismissed after a\tfull
\nhearing\t and following the decision in Emperor\tv.  Jorabhai
\n(supra)\t it  was  held that the\t accused  could\t not,  under
\nsection 439(6), challenge the correctness of his  conviction
\nfor the second time while showing cause against\t enhancement
\nof sentence.  The same principle has been extended to  cases
\nwhere  the appeal of the accused person had been  previously
\ndismissed by the High Court summarily but after hearing\t the
\naccused or his advocate. (See Emperor v. Batubai(2), Emperor
\nv. Haji Khanhamoo(3), King v. Nga Ba Saing (supra),  Emperor
\nv.  Naubat(4)  ),  to cases where the  jail  appeal  of\t the
\naccused\t had  previously been  dismissed  summarily  without
\nhearing\t the  accused or his advocate (see Emperor  v.\tKoya
\nPartab(5), Emperor v. Abdul Qayum(6), Ramchand v. Hiralal(7)
\nand  State v. Bhavani Shankar<\/a>(8)) and to cases of  dismissal
\nof revision petition filed by the accused after hearing\t the
\nadvocate  (see In re Saiyed Anif Sahib(1), Emperor  v.\tSher
\nSingh(“), Crown v. Dhanna Lal (supra) ) and also to the case
\nof  an\taccused whose revision petition has  been  summarily
\ndismissed (see Emperor v.. Inderchand (supra)).\t It has been
\nheld  that  for the purposes of section 439(6) it  makes  no
\ndifference  whether the judgment or order of  dismissal\t was
\nmade by the High Court in appeal or in revision, or  whether
\nthe  appeal or revision was dismissed summarily or  after  a
\nfull  hearing  on notice to the State  or  other  interested
\nparty and that any dismissal of the appeal or
\n(1)  [1931] I.L.R. 10 Pat. 872.(6) A.I.R. 1933 All. 485.
\n(2)  A.I.R. 1927 Bom. 666.(7) A.I.R. 1942 All. 339.
\n(3)  A.I.R. 1936 Sind 233.(8) I.L.R. [1952] 2 Raj. 716.
\n(4)  I.L.R [1945] All. 527.   (9) A.I.A. 1925 Mad. 993.
\n(5)  [1930] I.L.R. 54 Bom. 822.(10) [1927] I.L.R. 8 Lah.
\n521,
\n14<\/span>
\n106<\/span>
\nrevision  prevents the accused person from availing  himself
\nof  the benefit of section 439(6).  In two cases Emperor  v.
\nLukman(1) and Emperor v. Shidoo(2) the Sind Court took up an
\nintermediate  position that the accused person whose  appeal
\nhad been dismissed summarily or after full hearing could not
\nchallenge  his conviction for the second time except to\t the
\nextent that the conviction was not founded on legal evidence
\nor was manifestly erroneous.  In other words, lie could only
\ngo up to what was ordinarily permitted in a revision.  These
\ntwo decisions appear to me, with respect,to be illogical and
\nI need say no more about them.\t   In the other cases  noted
\nabove it has been quite\t definitely  held that\tthe  accused
\nperson\twhose  appeal  or  revision  application  has\tbeen
\npreviously dismissed, summarily or after a full hearing,  is
\nnot  entitled,\twhen  called  upon to  show  cause  why\t the
\nsentence should not be enhanced, to question the correctness
\nof his conviction for the second time.\tIn other words,\t the
\nprevious  dismissal,  according to these decisions.,  is  an
\nadjudication  by  the High Court of the correctness  of\t his
\nconviction  and\t on the principle of  finality\tof  judgment
\nembodied  in  sections 369 and 430 of the Code\tof  Criminal
\nProcedure  that\t adjudication cannot be called\tin  question
\nunder  section 439(6).\tIt has been pointed out\t in  several
\ncases  (Crown v. Dhanna Lal (supra), Emperor  v.  Inderchand
\n(supra)\t and King v. Nga Ba Saing (supra))  that  subsection
\n(6) opens with the words “notwithstanding anything contained
\nin  this  section” and not with the  words  “notwithstanding
\nanything contained in this Code” and from this the inference
\nhas  been  drawn that while the sub-section -is\t to  operate
\nnotwithstanding the provisions of sub-section (5) it  cannot
\noverride  the other provisions of the Code, and,  therefore,
\nthe operation of sub-section (6) is conditioned or  control-
\nled  by\t the principle of finality of judgment\tembodied  in
\nsection\t 369  and  section 430.\t Some  learned\tJudges\thave
\nexpressed  the\tview (see In re Saiyed Anif  Sahib  (supra),
\nCrown v. Dhanna Lal (supra)) that the words (‘unless he\t has
\nalready done so” are to be read in sec-\n<\/p>\n
(1) A.I.R. 1927 Sind 39.\n<\/p>\n
(2) A.I.R. 1929 Sind 26.\n<\/p>\n
107<\/span><\/p>\n
tion 439(6), for this is to be implied from the\t presumption
\nof  finality.\tIn  some cases (see Emperor  v.\t Sher  Singh
\n(supra) and Ram Lakhan v. Emperor (supra)) the decision\t has
\nbeen  placed also oil the ground of the inherent  incapacity
\nof one Judge of the High Court to reconsider the decision of
\nanother\t Judge\tof that Court.\tIt is necessary\t to  examine
\nthese grounds a little closely to ascertain their validity.
\nIn  order to appreciate the true meaning and exact scope  of
\nsections  369 and 430 on which the argument of\tfinality  of
\njudgment  is  founded it is necessary to keep  in  view\t the
\ngeneral scheme of the Code.  Part VI of the Code deals\twith
\n“Proceedings  in  Prosecutions”.  Chapter XV lays  down\t the
\njurisdiction of the Criminal Courts in Inquiries and Trials.
\nI  pass over Chapters XVI to XVIII.  Chapter XIX  prescribes
\nrules  for the framing and joinder of charges.\tChapters  XX
\nto XXIII deal with different kinds of trials, e.g., trial of
\nsummons\t cases,\t warrant cases, summary\t trials\t and  trials
\nbefore\tHigh  Courts and Courts of  Session.   Chapter\tXXIV
\ncontains  general  provisions as to  Inquiries\tand  Trials.
\nMode  of taking and recording evidence is prescribed by\t the
\nsections grouped together in Chapter XXV. then comes Chapter
\nXXVI which is headed “Of the Judgment”.\t Section 369 is\t one
\nof  the\t sections included in this chapter.   Chapter  XXVII
\nprovides  for  the  submission of death\t sentences  for\t the
\nconfirmation  of  the  High Court.  Rules  relating  to\t the
\nexecution,  suspension,\t remission and commutations  of\t the
\nsentences are to be found in Chapters XXVIII and XXIX.\tPart
\nVI  ends  with\tChapter XXX which is not  material  for\t our
\npresent purpose.  Part VII deals with “Appeal, Reference and
\nRevision”.   Chapter XXXI is concerned with Appeals  and  we
\nfind  section 430 in this chapter.  Chapter  XXXII  provides
\nfor  reference\tand revision, section 439 being one  of\t the
\nsections  included in this chapter.  In view of\t the  scheme
\nsummarised  above there can be no manner of doubt  that\t the
\nprovisions  of\tthe sections collected in Chapter  XXVI\t are
\nconcerned  with\t judgments pronounced by  the  trial  Court.
\nThis  conclusion is certainly reinforced by the language  of
\nsome
\n108<\/span>
\nof these sections.  Thus section 366 which is the very first
\nsection\t in  this chapter refers to “The judgment  in  every
\ntrial  in  any\tCriminal Court\tof  original  jurisdiction”.
\nSection\t 367 provides what must be contained in “every\tsuch
\njudgment”,  that  is to say judgment in an  original  trial.
\nSection 369 runs as follows:\n<\/p>\n
“369.\tCourt  not  to\talter  Judgment.-Save  as  otherwise
\nprovided by this Code or by any other law for the time being
\nin  force  or, “in the case of a High Court by\tthe  Letters
\nPatent or other instrument constituting such High Court”, no
\nCourt,\twhen  it  has signed its judgment,  shall  alter  or
\nreview the same, except to correct a clerical error”.
\nThe  opening  words  “save as  otherwise  provided  by\tthis
\nCode……..  constituting  such High Court” were  added  by
\nsection\t 119  of  the Amending Act XVIII of  1923  and\twere
\nfurther\t adapted by Adaptation of Laws Order,  1950.   There
\ncan  be\t no  question that the\tfinality  embodied  in\tthis
\nsection\t is only in relation to the Court  which  pronounces
\nthe judgment, for it forbids the Court, after it has  signed
\nits judgment, to alter or review the same.  In other  words,
\nafter pronouncing the judgment the Court that pronounces  it
\nbecomes\t functus officio.  There is indication in  the\tCode
\nitself that the purpose of section 369 is not to prescribe a
\ngeneral\t rule of finality of all judgments of  all  Criminal
\nCourts but is only to prescribe finality for the judgment of
\nthe  trial  Court so far as the trial  Court  is  concerned.
\nThat  this  section  does  not,. by  itself,  apply  to\t the
\njudgment of an appellate Court is quite obvious, because  if
\nit  did,  there would have been no  necessity  for  enacting
\nsection\t 424  specifically  making the\trules  contained  in
\nChapter XXVI, which includes section 369, applicable to\t the
\njudgment  of any appellate Court other than High Court,\t nor
\nfor again prescribing by section 430 a rule of finality\t for
\njudgments  and\torders passed by an  appellate\tCourt.\t It,
\ntherefore,  follows that while, subject to the other  provi-
\nsions  of  the\tCode or any other law  and  of\tthe  Letters
\nPatent,\t the  finality\tof  section  369  attaches  to\t the
\njudgments pronounced by all trial Courts including the\tHigh
\nCourt in the exercise of its original criminal
\n\t\t\t    109<\/span>
\njurisdiction it certainly has no bearing on the question  of
\nfinality  of  appellate\t judgments  which  is\tspecifically
\nprovided  by  section 430 of the Code.\tAgain, the  rule  of
\nfinality embodied in section 369 cannot, in terms, apply  to
\nthe  orders  made  by  the High Court  in  exercise  of\t its
\nrevisional  jurisdiction, for section 442 of the Code  which
\nrequires  the  result  of the  revision\t proceedings  to  be
\ncertified  to  the Court by which the finding,\tsentence  or
\norder  revised\twas recorded or passed refers to it  as\t its
\n“decision  or order” and not “judgment”.  It is\t significant
\nthat  section 425 which requires the result of appeal to  be
\ncertified  to the lower Court refers to it as its  “judgment
\nor order”.  All these considerations herein alluded to quite
\nclearly establish that section 369 cannot in any manner con-
\ntrol  section 439(6).  In any case, section 369 is  “subject
\nto the other provisions of the Code” and I see no reason why
\nsection\t 439(6) should not be regarded as one of such  other
\nprovisions.  It cannot be overlooked that the words “subject
\nto  the other provisions of the Code, etc.” were  introduced
\ninto  section  369 at the same time as sub-section  (6)\t was
\nadded to section 439.  As I read the new sub-section, it  is
\na  substantive statutory right conferred on the subject\t and
\nfull  effect should be given to it unless there is  any\t in-
\nsuperable difficulty in the way of doing so.  If section 369
\nwere  susceptible of as wide a meaning as is read into\tit,,
\nnamely,\t that  it applies to all judgments  of\tall  Courts,
\noriginal,  appellate or revisional, I would, in\t that  case,
\nbold that that meaning must be taken as cut down, by  reason
\nof  the words “subject to the other provisions of the  Code,
\netc.”  by  the mandatory provision&-of section\t439(6).\t  In
\nother  words,  section 439(6) must be  read  as\t controlling
\nsection\t 369  rather  than the other  way  about.   Finally,
\nsection\t 369  being subject to the other provisions  of\t the
\nCode  must  be\tread as subject to section 430\tand  as\t the
\nfinality enshrined in the latter section does not attach  to
\ndecisions  or orders made in revision by reason\t of  Chapter
\nXXXII being expressly excepted from its operation, the\trule
\nof  finality embodied in section 369, even if it be as\twide
\nas it is contended to be,
\n110<\/span>
\ncannot affect cases provided for in Chapter XXXII.
\nI  now\tpass on to section 430 which is also  relied  on  as
\nfurnishing  a  principle of finality which  is\tsupposed  to
\ncontrol\t the operation of section 439 6).  Section  430,  in
\nterms,\tapplies\t to  “judgments and  orders”  passed  by  an
\nappellate  Court.   It has no application to  “decisions  or
\norders”\t made  by the High Court in revision.  It  has\tbeen
\ncontended that the exception made in section 430 in  respect
\nof  cases  provided for in Chapter XXXII  only\texempts\t the
\njudgments or orders of an appellate Court other than a\tHigh
\nCourt  from  the rule of finality embodied in  section\t430,
\nbecause\t they  are made revisable by the  High\tCourt  under
\nsection\t 439(1).   Section 439(1) does\tnot  contemplate  or
\npermit\tjudgments  or  orders made -by\tthe  High  Court  in
\nexercise of its original or appellate criminal\tjurisdiction
\nto  be\trevised\t by  the High  Court.\tAs,  therefore,\t the
\nappellate  judgments  or orders of the\tHigh  Court  cannot,
\nunder  section\t439(1), be made the  subject-matter  of\t any
\nrevision application, such appellate judgments or orders did
\nnot  fall within the exception made in section 430 and\twere
\naccordingly  left subject to the rule of  finality  embodied
\ntherein.  Two answers occur to me.  If the effect of the new
\nsubsection (6), as I have already explained, is to confer  a
\nnew  right  on an accused  person  notwithstanding  anything
\ncontained in section 439(1), that is to say, if\t sub-section
\n(6)  is\t read,\tas  I think it should  be,  as\ta  statutory
\nprovision expressly making the judgment or decision or order
\nof  the\t High Court passed in exercise of its  appellate  or
\nrevisional  jurisdiction  subject, for the  purpose  of\t the
\nprotection of an accused person whose appeal or revision had
\nbeen  previously  dismissed, to re-examination by  the\tHigh
\nCourt  only  as and when he is subsequently  faced  with  an
\napplication for enhancement of sentence, then such judgment,
\ndecision  or  order of the High Court does, as a  result  of
\nsection 439(6), become the subject-matter of a case provided
\nfor in Chapter XXXII of the Code.  In other words, the scope
\nof  Chapter  XXXII having been enlarged by the\taddition  of
\nsub-section (6)\t    to\t section  439,\tthe  scope  of\t the
\nexception to sec-\n<\/p>\n
\t\t\t  111<\/span><\/p>\n
tion  430 must also stand enlarged so as to  include  within
\nthe exception whatever, after the amendment of section\t439,
\nmay  come  within Chapter XXXII and,  therefore,  cases\t now
\ncoming\twithin\tthat Chapter must stand free from  the\trule
\nfinality embodied in section 430.  The other answer is to be
\nfound  in two of the decisions of the Allahabad High  Court,
\nnamely\tEmperor\t v.  Abdul  Qayum  (supra)  and\t Ram   Chand
\nHiralal(1)  where it has been field that section 430  by  V.
\nits own terms  saves the revisional power of the High  Court
\nto  enhance the sentence.  In each of these cases  the\tjail
\nappeal\tfiled by the accused had been dismissed by the\tHigh
\nCourt  summarily.   If\tthe rule of  finality  of  appellate
\njudgments  does not attach to the summary dismissal  of\t the
\njail  appeal  by the High Court so as to prevent  the  State
\nfrom invoking its revisional power to enhance the  sentence,
\nsurely\tthe  accused’s\tright  to  show\t cause\tagainst\t his
\nconviction under section 439 (6), which is consequential and
\narises\tonly upon a rule for enhancement being issued  under
\nsection\t 439(2) and is, therefore, a part of the  revisional
\nproceedings  for enhancement of sentence, must, on a  parity
\nof  reasoning  be  also\t free from  the\t same  principle  of
\nfinality.   It,\t therefore, follows that section  434(6)  is
\nnot,  in  terms, controlled by section 369 or  section\t430.
\nWhether\t the  sub-section  is  controlled  by  the   general
\nprinciple of finality of judgments and if so to what  extent
\nare different questions which will be discussed later.
\nThe  second  ground  on which some of  the  decisions  rest,
\nnamely,\t the  inherent incapacity of one Judge of  the\tHigh
\nCourt  to  reconsider the decision of another Judge  of\t the
\nHigh Court may easily be disposed of The theory of  inherent
\nincapacity must give way to the statutory capacity conferred
\nby  section  439(6).  If on a true  construction  a  statute
\nstates, expressly or by necessary intendment, that one Judge
\nor  one\t Bench shall have jurisdiction and power  to  decide
\nsomething,  the theory of inherent incapacity of such  Judge
\nor  Bench cannot be invoked to prevent the exercise of\tsuch
\njurisdiction and power merely on
\n(1)  A.I.R. 1942 All. 339.\n<\/p>\n
112<\/span><\/p>\n
the  ground  that the decision which may be  arrived  at  in
\nexercise  of this new jurisdiction or power may run  counter
\nto  the\t previous decision arrived at by  another  Judge  or
\nBench  in exercise of another jurisdiction or power.  I\t see
\nno reason why section 439(6) may not be read as a  provision
\nwhich,\tby necessary implication, enables the High Court  to
\nre-examine  its\t own  previous order  on  the  happening  of
\ncertain\t contingencies,\t namely, upon  the  accused  person,
\nwhose  appeal  or revision has been dismissed,\tbeing  faced
\nwith  the risk of having his sentence enhanced and a  notice
\nbeing issued to him for enhancement.\n<\/p>\n
To reinforce the argument that section 439(6) is  controlled
\nby  sections 369 and 430 reference has been made to  section
\n423(2)\tand  it\t has been contended,  on  the  authority  of
\nvarious decisions, that the right given by section 439(6) is
\nnot absolute but is controlled by the provisions of  section
\n423(2)\twhich  lay down some limitations in  the  matter  of
\nappeal from convictions in a jury trial.  Even on that topic
\nsome  learned Judges have taken divergent views.  It is\t not
\nnecessary, on this occasion, to express any opinion on\tthat
\nquestion  and I reserve my right to examine the position  as
\nand  when an occasion may arise in future.  Even if  section
\n439(6)\tis controlled by section 423(2),  that\tcircumstance
\ncertainly   does   not\t indicate  when\t  and\tunder\twhat
\ncircumstances the right under section 439(6) may be  availed
\nof.   In any case, that consideration has no bearing on\t the
\nargument of finality of judgments sought to be founded
\non sections 369 and 430.\n<\/p>\n
It will be convenient at this stage to refer to the decision
\nof a Full Bench of the Lahore High Court in Emperor v.\tAtta
\nMohammad(1)  and  to deal with the argument founded  on\t and
\ndeveloped from some of the reasonings adopted by the learned
\nJudges\tconstituting  that  Full Bench.\t In  that  case\t the
\nrevision  application of the accused had been  dismissed  in
\nlimine\tby the High Court.  Subsequently the  Crown  applied
\nfor  enhancement  of sentence.\tNotice\thaving\tbeen  issued
\nunder sub-section (2) of section 439 the accused
\n(1)  [1943] I.L.R. 25 Lah. 391.\n<\/p>\n
113<\/span><\/p>\n
person\tclaimed\t the right, under  sub-section(6),  to\tshow
\ncause  against his conviction in spite of the fact that\t his
\nrevision  application had been dismissed.  The Advocate\t for
\nthe  Crown  relied  on\tthe  cases  referred  to  above\t and
\ncontended  that\t the  order of\tdismissal  of  the  revision
\napplication  by\t the  High Court was final  as\tregards\t the
\ncorrectness  of\t the conviction, that that order  could\t not
\nagain be revised by the High Court, that the accused was  no
\nlonger entitled to challenge his conviction and that it made
\nno difference that his revision petition had been  dismissed
\nin limine.  The Full Bench overruled the earlier decision of
\nthe  Court in Crown v. Dhanna Lal (supra) and held that\t the
\naccused\t was, in the circumstances of the case, entitled  to
\nshow cause against his conviction, notwithstanding the\tfact
\nthat  his  application for revision had\t been  dismissed  in
\nlimine.\t  The reasoning adopted by Blacker, J., was  shortly
\nas follows: That an order dismissing a revision petition  in
\nlimine\tis  an order made under section 435  and  not  under
\nsection\t 439;  that  such an order is not  a  judgment\tand,
\ntherefore, the principle of finality embodied in section 369
\ndoes  not apply to such an order, because such\ta  dismissal
\nonly meant that the Judge saw no adequate grounds  disclosed
\nin  the\t petition  or  on  the\tface  of  the  judgment\t for
\nproceeding any further; that, in the picturesque language of
\nthe learned Judge, in such a dismissal “there is no  finding
\nor decision unless it can be called a decision to decide  to
\ncome to no decision”; that the jurisdiction exercised by the
\nCourt  under section 439(6) was appellate  jurisdiction\t and
\nthat  an order of acquittal thereunder did not amount  to  a
\nreview\tof  an\torder of dismissal under  section  435;\t and
\nfinally\t that if the order under section 435 was a  judgment
\nor  if\tan  order of acquittal under section  439(6)  was  a
\nreview\tof  such  judgment, such review was  not  barred  by
\nsection 369, because of the saving provisions with which the
\nsection\t begins.   Mahajan, J., as he then was, put  in\t the
\nforefront of his judgment the view that section 439(6) which
\nwas introduced by amendment in 1923 gave a new and unlimited
\nright
\n15<\/span>
\n114<\/span>
\nto  the subject; that the Judge hearing the application\t for
\nenhancement  was  bound\t to go into  the  facts\t to  satisfy
\nhimself\t as to the correctness of the conviction;  that\t the
\nexercise  of  revisional jurisdiction was a mere  matter  of
\nfavour\tand  a\tdismissal  in  limine  of  such\t application
\namounted  only to a refusal to look into the record and\t was
\nin  no sense a judgment.  Ram Lall, J., did not deliver\t any
\nseparate  judgment  but concurred generally with  the  other
\nlearned Judges.\n<\/p>\n
It  will  be noticed that this decision of the\tLahore\tHigh
\nCourt  rests  mainly on two grounds, namely, (1) that  in  a
\ndismissal  of a revision application in limine there  is  no
\nfinding or decision at all and that it is nothing more\tthan
\na refusal to send for the records or to look into the matter
\nand  is,  therefore, not a judgment., and (2) that,  in\t any
\ncase,  section\t439(6) gives a new statutory  right  to\t the
\naccused person to challenge the legality or propriety of his
\nconviction,  although his previous application for  revision
\nof the order of the lower Court had been dismissed in limine
\nand that such a review of that dismissal order is not barred
\nby  section  369  because of the  saving  provision  at\t the
\nbeginning  of  that  section.\tThe  Full  Bench   expressly
\ndeclined  to  express  any  opinion  as\t to  the  effect  of
\ndismissal  of  an appeal on the right given  by\t sub-section
\n(6).   The principle of the first ground of the Lahore\tFull
\nBench decision has, however, been extended by the  Rajasthan
\nHigh  Court  in’ The State v. Bhawani Shankar<\/a> (supra)  to  a
\ncase  where the respondent’s jail appeal had been  summarily
\ndismissed.   According to Wanchoo, C.J., the accused,  whose
\njail  appeal had been dismissed summarily, was in  the\tsame
\nposition  as the accused, whose revision petition  had\tbeen
\ndismissed  in limine, for he too could not be said  to\thave
\nhad an opportunity of showing cause against his\t conviction.
\nThe  learned  Chief Justice, however, did not desire  to  go
\nfurther\t and  expressed\t the view that\tif  an\tappeal\twere
\ndismissed  summarily  but  after hearing the  party  or\t his
\npleader\t the  accused  could  not claim\t to  have  a  second
\nopportunity  to\t challenge  his\t conviction  under   section
\n439(6),\t because  in  that  case  he  had  been\t heard\tand,
\ntherefore, had had an oppor-\n<\/p>\n
115<\/span><\/p>\n
tunity to show cause against his conviction when his  appeal
\nhad been summarily dismissed.\n<\/p>\n
It  will be recalled that in Emperor v. Jorabhai supra)\t and
\nthe  other cases which followed it it was said that for\t the
\npurposes of determining the applicability of section  439(6)
\nit  made no difference in principle whether  the  proceeding
\nfiled by the accused which had been dismissed was an  appeal
\nor a revision or whether the dismissal was summary or  after
\na  full\t hearing and that in none of such  cases  could\t the
\naccused\t person claim a second opportunity to  question\t the
\nlegality  or  propriety\t of  his  Conviction  when  he\t was
\nsubsequently  called  upon to show cause  why  the  sentence
\npassed\ton him should not be enhanced.\tIn the\tLahore\tFull
\nBench  case  and  the Rajasthan case  referred\tto  above  a
\ndistinction  has,  however,  been  made\t between  a  summary
\ndismissal and a dismissal after a full hearing of the appeal
\nor revision filed by the accused.  In my judgment there is a
\nsubstantial  distinction  between these two  kinds  of\tdis-
\nmissals\t as  regards their effect on the rights\t of  accused
\npersons as I shall presently indicate.\n<\/p>\n
I am, however, unable to accept the argument adopted by\t the
\nLahore\tFull  Bench that a summary dismissal of\t a  revision
\napplication  filed  by the accused must be  regarded  as  an
\norder made under section 435 and not one under section\t439,
\nthat such a summary dismissal is nothing more than a refusal
\non the part of the High Court to go further or to look\tinto
\nthe  application  and that in such a dismissal there  is  no
\nfinding or decision at all.  Far less am I able to accede to
\nthe  proposition that a summary dismissal of a\tjail  appeal
\nalso stands on the same footing.  Sections 421, 435 and\t 439
\nundoubtedly  vest  a  very wide\t discretion  in\t the  Court.
\nDiscretion,  as\t Lord  Halsbury, L.C.,\tsaid,  in  Sharp  v.
\nWakefield(1), means sound discretion guided by law.  It must
\nbe governed by rules of reason and justice and not according
\nto  private opinion; according to law and not by  humour  or
\ncaprice.   It must not be arbitrary, vague and fanciful\t but
\nmust be legal and regular.  This discretion is given to the
\n(1)  L.R. [1891] A.C. 173 at p. 179.\n<\/p>\n
116<\/span><\/p>\n
High Court for the purpose of dealing with and disposing  of
\nthe  proceeding brought before it and not for  not  deciding
\nit.   The  primary  and paramount duty of the  Court  is  to
\ndecide\tthe  appeal or revision and it is  to  exercise\t its
\ndiscretion  in\tso deciding it.\t In deciding the  appeal  or
\nrevision  the High Court may choose which of its  powers  it
\nwill exercise if the circumstances of the case call for such
\nexercise.   In\ta  clear case, apparent on  the\t grounds  of
\nappeal\tor revision or on the face of the judgment  appealed
\nfrom  or sought to be revised it may come to the  conclusion
\nthat  the  case\t has  no merit and does\t not  call  for\t the
\nexercise  of any of its powers in which case it may  dismiss
\nit  summarily.\tIf, however, it has any doubt, it  may\tcall
\nfor  the  record  or may admit it and issue  notice  to\t the
\nrespondent  and\t decide\t it  after a  full  hearing  in\t the
\npresence of all parties.  But decide it must at one stage or
\nthe other.  The discretion conferred on the High Court\tdoes
\nnot authorise it to say that it will not look at the  appeal
\nor  the revision.  The court’s bounden duty is to look\tinto
\nthe  appeal  or\t revision and decide  it,  although  in\t the
\nprocess\t of  arriving  at  its decision\t it  has  very\twide
\ndiscretion.   When the Court summarily dismisses  an  appeal
\nwhether without hearing the accused or his pleader as in the
\ncase  of a jail appeal or after hearing the accused  or\t his
\npleader\t but before issuing any notice to the respondent  as
\nin  an appeal presented by the accused or his  pleader,\t the
\nCourt  does decide the appeal.\tIt is indeed a very  serious
\nthing to say that sections 421, 435 or 439 give the Court  a
\ndiscretion  not\t to decide the appeal  or  revision  brought
\nbefore it and I, for one, am not prepared to countenance and
\nmuch less encourage such an idea.  In my judgment a  summary
\ndismissal  of  an  appeal or revision does  involve  an\t ad-
\njudication  by\tthe High Court just as a dismissal  after  a
\nfull  hearing  does.   The  only  difference,  as  we  shall
\npresently  see, is as to the respective, nature,  scope\t and
\neffect of the two adjudications.\n<\/p>\n
It  has\t been  said  that when\tan  appeal  or\trevision  is
\ndismissed  after  a  full  hearing by  the  High  Court\t the
\njudgment of the lower Court merges in the High Court
\n117<\/span>
\njudgment  and the High Court judgment replaces the  judgment
\nof  the lower Court and becomes the only operative  judgment
\nbut that when the appeal or revision is summarily  dismissed
\nby the High Court there is, in such a dismissal, no  finding
\nor  decision  which can replace the judgment  of  the  lower
\nCourt.\tit is, therefore, said that there can be no  showing
\ncause  against his conviction under sub-section (6)  in\t the
\nfirst  case,  for  it will involve a revision  of  the\tHigh
\nCourt’s\t decision but the position will be otherwise in\t the
\nsecond case where the dismissal was summary.  This  argument
\nappears\t to me to be untenable and fallacious.\tSection\t 425
\nof  the\t Code requires that whenever a case  is\t decided  on
\nappeal by the High Court under Chapter XXXI it must  certify
\nits  judgment  or order to the Court by which  the  finding,
\nsentence  or order appealed against was recorded  or  passed
\nand that that Court shall thereupon make such orders as\t are
\nconformable  to the judgment or order of the High Court\t and
\nthat,,\tif  necessary,\tthe  record  shall  be\tamended\t  in
\naccordance  therewith.\tLikewise, section 442 requires\tthat
\nwhen  a\t case  is revised under Chapter XXXII  by  the\tHigh
\nCourt,\tit  shall, in the manner provided  by  section\t425,
\ncertify\t its  decision or order to the Court  by  which\t the
\nfinding,  sentence or order revised was recorded  or  passed
\nand that that Court shall thereupon make such orders as\t are
\nconformable  to\t the  decision so  certified  and  that,  if
\nnecessary,  the\t record\t shall\tbe  amended  in\t  accordance
\ntherewith.  This certificate is sent in every -case, whether
\nthe  appeal or revision is disposed of summarily or after  a
\nfull  hearing.\tWhere an appeal or revision is\tdisposed  of
\nafter a full hearing on notice to the respondent and allowed
\nwholly\t-or  in part it becomes ex facie  obvious  that\t the
\njudgment  appealed against or sought to be revised has\tbeen
\naltered\t by  the judgment or decision of the High  Court  on
\nappeal or revision and a note is made in the record of\tthis
\nalteration.   But  when an appeal or revision  is  dismissed
\nafter  full hearing and the sentence is maintained there  is
\noutwardly  no change in the record when the  certificate  is
\nsent  by  the  High  Court  but\t nevertheless  there  is  an
\nadjudica-\n<\/p>\n
118<\/span><\/p>\n
tion by the High Court.\t In the first case it is judgment of
\nacquittal or reduction of sentence and in the second case it
\nis  a judgment of conviction.  Likewise, when an  appeal  or
\nrevision  is summarily dismissed, such\tdismissal  maintains
\nthe judgment or order of the lower Court and a note is\tmade
\nof such dismissal in the record and in the eye of the law it
\nis  the\t judgment of the High Court that prevails.   To\t the
\nuninstructed  mind the change may be more easily  noticeable
\nin  the\t first\tcase  than in the other\t two  cases  but  on
\nprinciple  there is no difference.  I can see no reason\t for
\nholding\t that there is a merger or replacement\tof  judgment
\nonly in the first two cases and not in the last one.  In  my
\nopinion,  it  makes no difference whether the  dismissal  is
\nsummary\t or otherwise, and there is a judgment of  the\tHigh
\nCourt in all the three cases.\n<\/p>\n
It  is,\t at once urged that if the summary dismissal  of  an
\nappeal\tor  revision  is also a judgment then  the  rule  of
\nfinality  prescribed  by sections 369 and 430 will  at\tonce
\napply  to  it  and a cunning accused may by  putting  up  an
\nobviously  untenable  appeal or revision  and  procuring  an
\norder  of summary dismissal of it, prevent the State or\t any
\nother  interested  party  from\tmaking\tan  application\t for
\nenhancement of the sentence.  The apprehension, to my  mind,
\nis  unfounded for reasons more than one.  When an appeal  or
\nrevision  is  filed  by an accused person he  sets  out\t his
\ngrounds\t in  detail,  challenging both\this  conviction\t and
\nsentence.  From the very nature of things he does not  raise
\nany question of enhancement of the sentence.  At that  stage
\nno  notice or rule having been issued the respondent is\t not
\nbefore the Court to raise the issue of enhancement.  So\t the
\nsummary\t dismissal only confirms the conviction and  decides
\nthat the Court sees no ground for reducing the sentence.  It
\nis  in no sense a decision that the sentence should  not  be
\nenhanced for that issue was not before the Court at all\t and
\nso  it\thas been said, I think rightly,\t in  several  cases,
\n[e.g.  In re Syed Anif Sahib (supra)], Emperor\tv.  Jorabhai
\n(supra)\t and Emperor v. Inderchand (supra)].  The  fact\t the
\nHigh Court simply dismisses the appeal or revision summarily
\nwithout issuing the notice on
\n119<\/span>
\nthe  accused under section 439(2) for showing cause  against
\nenhancement  is a clear indication that the High  Court\t has
\nnot considered the question of enhancement.  It is true that
\nthe  rule of finality prescribed by section 430\t applies  to
\nthe  appellate\tjudgment of the High Court, subject  to\t the
\nexception regarding cases falling within Chapter XXXII.\t  It
\nis  also  true\tthat although the revisional  power  is\t not
\nexpressly  or in terms controlled either by section  369  or
\nsection 430, the general principle of finality of  judgments
\nattaches  to the decision or order of the High Court  passed
\nin  exercise of its revisional powers.\tBut  this  finality,
\nstatutory  or  general,\t extends only to  what\tis  actually
\ndecided by the High Court and no further.  When an appeal or
\nrevision  by the accused is allowed after a full hearing  on
\nnotice to the respondent the conviction and sentence must be
\nregarded  as having been put in issue and  finally  decided.
\nWhen the accused person in the presence of the State  claims
\nan  acquittal or reduction of his sentence, the State  ought
\nthen and there to apply for enhancement of sentence and\t its
\nfailure\t to do so cannot but be regarded as  abandonment  of
\nthe  claim.  The acceptance by the High Court of the  appeal
\nor  revision  on notice to the respondent and after  a\tfull
\nhearing\t is,  therefore,  nothing less than  a\tjudgment  of
\nacquittal  or a judgment for reduction of sentence.  On\t the
\nother hand, the dismissal by the High Court of an appeal  or
\nrevision after such a full hearing amounts to a judgment  of
\nconviction.  In both cases the judgment is final as  regards
\nboth   the  accused  and  the  respondent  as  regards\t the
\nconviction  as\twell  as the sentence in  all  its  aspects,
\nnamely,\t reduction  or enhancement.  In\t that  situation  no
\nfurther\t question of revision can arise at the\tinstance  of
\neither\tparty.\tThere can be no further application  by\t the
\naccused\t challenging  his conviction or sentence.   Nor\t can
\nthere\tbe  any\t further  application  by  the\t State\t for
\nenhancement  of the sentence, for that question\t could\thave
\nbeen and should have been raised when the accused person  in
\nthe  presence  of  the respondent prayed  for  acquittal  or
\nreduction  of  sentence and not having then been  raised  it
\ncannot be raised
\n120<\/span>
\nsubsequently and consequently no question can arise for\t the
\nexercise of right by the accused under section 439(6).\tThis
\nresult\tis  brought about not by any technical\tdoctrine  of
\nconstructive  res  judicata  which  has\t no  application  to
\ncriminal  cases but on the general principle of finality  of
\njudgments.   The summary dismissal of an appeal or  revision
\nby  the accused, with or without bearing him or his  pleader
\nbut  without issuing notice to the respondent is, so far  as
\nthe  accused  is  concerned, a judgment\t of  conviction\t and
\nconfirmation  of his sentence and he can no longer  initiate
\nrevision  petition against his conviction or sentence.\t The
\njudgment  or  decision is a final judgment qua\tthe  accused
\nperson,\t for  otherwise\t he could go  on  making  successive
\nappeals\t or revision applications which obviously he  cannot
\nbe  permitted  to  do.\tBut the State  or  other  interested
\nperson who has not been served with any notice of the appeal
\nor revision cannot be precluded, by the summary dismissal of
\nthe   accused’s\t  appeal  or  revision,\t from\tasking\t for
\nenhancement,  for  in  that  situation\tthe  State  or\t the
\ncomplainant  not being present the question  of\t enhancement
\nwas not in issue before the Court and the summary  dismissal
\ncannot\tbe  regarded as an adjudication on the\tquestion  of
\nenhancement.  That question not having been put in issue and
\nnot  having  been decided by the High  Court,  the  finality
\nattaching  to the summary dismissal as against\tthe  accused
\ndoes  not  affect the position.\t This, I apprehend,  is\t the
\ntrue distinction between a summary dismissal of an appeal or
\nrevision  and a dismissal of it after a full  bearing.\t The
\ncases  of  Emperor v. Jorabhai (supra) and the\tother  cases
\nfollowing  it overlooked this vital distinction as also\t its
\neffect\ton the new statutory right conferred on the  accused
\nperson\tby  section 439(6) and they cannot  be\taccepted  as
\ncorrect\t decisions.   In  those cases where  the  appeal  or
\nrevision  filed\t by the accused had been dismissed  after  a
\nfull  hearing in the presence of the State and\twhere  there
\nwas  no application by the State or other  interested  party
\nfor  enhancement  of sentence during the  pendency  of\tthat
\nappeal or revision it should have
\n121<\/span>
\nbeen held that the dismissal must be regarded as a  judgment
\nwhich  was  final as against both parties  on  both  points,
\nconviction  and\t sentence  and there  could  be\t no  further
\napplication for the enhancement of sentence and consequently
\nno  question of the accused having a further opportunity  of
\nshowing\t cause against his conviction could arise.   In\t the
\ncases where the appeal or revision filed by the accused\t had
\nbeen  summarily dismissed without notice to the\t respondent,
\nit  should have been held that although such  dismissal\t was
\nfinal  as against the accused it did not preclude the  State
\nor  the complainant, who was not a party to  the  dismissal,
\nfrom  applying for enhancement of sentence and that as\tsoon
\nas an application for enhancement was made subsequently\t and
\na  notice was issued to the accused, the latter, faced\twith
\nthe  risk  of having his sentence enhanced, at\tonce  became
\nentitled, under section 439(6), in showing cause against the
\nenhancement  of\t sentence, also to show\t cause\tagainst\t his
\nconviction.   The Lahore Full Bench case has decided,  inter
\nalia  that  while the dismissal of  the\t accused’s  revision
\napplication  in\t limine\t does not  prevent  the\t State\tfrom
\nsubsequently  applying\tfor  enhancement  of  the  sentence,
\nsection 439(6) gives the accused a fresh right to  challenge
\nhis  conviction when a notice for enhancement is  issued  to
\nhim.   That  part of the decision may well be  sustained  on
\nthis ground as explained above but, with great respect, I do
\nnot agree with their view that the accused in that case\t had
\nthe  second  right  because the\t summary  dismissal  of\t his
\nrevision was not a judgment at all or was not final even  as
\nregards him.  The Rajasthan High Court’s decision in so\t far
\nas  it\textended the principle to the dismissal\t of  a\tjail
\nappeal\twithout\t hearing the accused or\t his  pleader  under
\nsection\t 421  may  also be supported on the  ground  I\thave
\nmentioned.  A Bench of the Lahore High Court in The Crown v.
\nGhulam\tMuhammad(1)  has  held\tthat  where  the   accused’s
\nrevision  application  bad been dismissed on notice  to\t the
\nrespondent and after a full hearing and the State sub.
\n(1)  Pak.  L.R. [1950] Lah. 803.\n<\/p>\n
16<\/span>
\n122<\/span><\/p>\n
sequently  applied for enhancement of sentence, the  accused
\nperson could again show cause against his conviction.\tWith
\ngreat  respect I think that the better reasoning would\thave
\nbeen  to say that such a dismissal of the revision  after  a
\nfull  hearing, was a judgment final against both parties  on
\nboth points of conviction and sentence and that as the State
\ndid  not,  during the pendency of that revision,  apply\t for
\nrevision it had., after that dismissal which became a  final
\njudgment, no right subsequently to apply for enhancement  of
\nsentence  and  consequently no notice under  section  439(2)
\ncould  issue  and no question could arise  for\tthe  accused
\nperson asserting his right under section 439(6).
\nFor reasons discussed above I have to hold that the  summary
\ndismissal  of the appeal filed by the appellant in the\tHigh
\nCourt was a judgment of conviction by the High Court and was
\nfinal so far as the appellant was concerned and he could not
\ninitiate any further revision application either against his
\nconviction or for reduction of sentence after that dismissal
\nbut that it was not final so far as the State was  concerned
\nand  the  State\t was  entitled\tto  apply  in  revision\t for
\nenhancement of sentence.  For reasons already stated I\tmust
\nfurther\t hold  that  as\t soon  as  the\tState  applied\t for
\nenhancement  and  a notice was issued on  the  appellant  he
\nbecame entitled under section 439(6) to again challenge\t his
\nconviction.  As I have said this sub-section gives a new and
\nvaluable  weapon  of  defence to an accused  person  who  is
\nplaced\tin  fresh  jeopardy  by\t reason\t of  an\t enhancement
\napplication  having been filed against him and a  notice  to
\nshow  cause  having been issued to him.\t I find\t nothing  in
\nsections  369 and 430 to cut down that right.  The  previous
\ndismissal of his appeal had no bearing on the new  situation
\ncreated\t  by   the   enhancement   application\t which\t the
\nLegislature,  in  enacting  section  439(6),  may  well\t and
\nproperly have thought to be sufficiently serious to  deserve
\nand  require a thorough re-examination by the High Court  of
\nthe conviction itself in this new context.  There is nothing
\nin  principle that I can see which should prevent that\tsub-
\nsec-\n<\/p>\n
123<\/span><\/p>\n
tion  from giving a fresh right to the accused whose  appeal
\nor  revision has been summarily dismissed to defend  himself
\nby challenging his conviction when a notice for\t enhancement
\nis issued to him.\n<\/p>\n
In  my judgment, for the reasons stated above,\tthis  appeal
\nshould be allowed and the matter should go back to the\tHigh
\nCourt so that the State’s application for enhancement may be
\ndealt  with according to law after giving the  appellant  an
\nopportunity to show cause against his conviction.
\nBHAGWATI  J.  delivered the Judgment of Bhagwati  and  Imam,
\nJJ.-This  appeal on certificate under article  134(1)(c)  of
\nthe  Constitution  raises an important question\t as  to\t the
\nright  of  a  convicted person to  show\t cause\tagainst\t his
\nconviction  while showing cause why his sentence should\t not
\nbe  enhanced under section 439(6) of the Criminal  Procedure
\nCode.\n<\/p>\n
The appellant was charged before the Presidency\t Magistrate,
\n13th   Court,  Bombay  with  having  committed\tan   offence
\npunishable under section 66(b) of the Bombay Act XXV of 1949
\ninasmuch as he was found in possession of one bottle of\t Mac
\nNaughtons  Canadian  Whisky  (Foreign)\tcontaining  8  drams
\nvalued\tat  Rs.\t 20.   He  was\tconvicted  by  the   learned
\nPresidency Magistrate and was sentenced to imprisonment till
\nthe  rising  of the Court and a fine of Rs. 250\t in  default
\nrigorous  imprisonment\tfor  one month.\t  He  presented\t his
\npetition of appeal to the High Court of Judicature at Bombay
\nthrough\t his advocate.\tThis petition of appeal was  however
\nsummarily  dismissed  by the High Court\t after\thearing\t the
\nadvocate  on the 19th January 1953.  On the 18th May 1953  a
\ncriminal  revision application for enhancement\tof  sentence
\nwas  filed by the State and a rule was granted by the  Vaca-
\ntion  Judge  on\t the 12th June 1953.   This  rule  came\t for
\nhearing\t and final disposal before a Division Bench  of\t the
\nHigh  Court  on\t the 26th August 1953.\t After\thearing\t the
\nGovernment Pleader in support of the rule the Court was\t not
\nsatisfied that there was a case for enhancement of sentence.
\nThe  learned counsel for the Appellant then wanted to  argue
\nfor an acquittal
\n124<\/span>
\nrelying\t upon  the  provisions\tof  section  439(6)  of\t the
\nCriminal Procedure Code.  Relying however upon the decisions
\nof  the\t Bombay High Court in Emperor  v.  Jorabhai(1),\t and
\nEmperor\t  v.   Koya  Partab  (2)  ,  as\t also\tEmperor\t  v.
\nInderchand(3),\tthe Court did not allow the learned  counsel
\nto  argue that the order of conviction itself could  not  be
\nsustained.  The application for enhancement of sentence\t was
\nthereupon  dismissed  and  the\trule  was  discharged.\t The
\nappellant  applied for leave to appeal to this Court on\t the
\n15th  October 1953.  The Division Bench of the\tHigh  Court,
\nhearing\t the  application stated the point which  arose\t for
\ndetermination as under:-\n<\/p>\n
“Whether  a summary dismissal of an appeal preferred  by  an
\naccused\t person precludes him from taking advantage  of\t the
\nprovisions of section 439(6) of the Criminal Procedure Code,
\nwhen  he is subsequently called upon to show cause  why\t the
\nsentence imposed upon him should not be enhanced”.
\nIt pointed out that the consistent view taken by the  Bombay
\nHigh Court in this matter had been accepted by the Allahabad
\nand  the  Patna\t High Courts in\t Emperor  v.  Naubat(4)\t and
\nRamlakhan Chaudhury v. Emperor(1) but the view taken by\t the
\nLahore High Court in Emperor v. Atta Muhammad(1), though not
\ndirectly in point prima facie lent support to the contention
\nurged\tby  the\t learned  counsel  for\tthe  Appellant.\t   A
\ncertificate  was therefore granted to the Appellant that  it
\nwas a fit case for appeal to this Court.\n<\/p>\n
It will be convenient at this stage to briefly indicate\t the
\nrelevant sections of the Criminal Procedure Code which\twill
\nfall  to be considered.\t Section 417 provides for an  appeal
\non behalf of the State Government to the High Court from  an
\noriginal or appellate order of acquittal passed by any Court
\nother  than a High Court.  Sections 419, 420, 421,  422\t and
\n423  prescribe the procedure in cases of  appeals.   Section
\n419  deals  with  petitions  of\t appeal\t presented  by\t the
\nappellant  or his pleader and section 420 with petitions  of
\nappeal
\n(1)  [1926] I.L.R. 50 Bom. 783.\n<\/p>\n
(2)  [1930] 32 Bom.  L.R. 1286.\n<\/p>\n
(3)  [1934] 36 Bom.  L.R. 954.\n<\/p>\n
(4)  I.L.R. 1945 Allahabad 527.\n<\/p>\n
(5)  [1931] I.L.R 10 Patna 872.\n<\/p>\n
(6)  [1943] I.L.R. 25 Lahore 391 (F.B
\n125<\/span>
\npresented  when\t the  appellant is  in\tjail.\tSection\t 421
\nprovides  for  summary\tdismissal of these  appeals  if\t the
\nAppellate Court considers that there is no sufficient ground
\nfor  interfering,  save\t that no  appeal  presented  by\t the
\nappellant  or  his  pleader is to be  dismissed\t unless\t the
\nappellant or his pleader has had a reasonable opportunity of
\nbeing heard in support of the same, and the Court might also
\nbefore dismissing an appeal summarily call for the record of
\nthe case though not bound to do so.  If the Appellate  Court
\ndoes  not dismiss the appeal summarily, notice of appeal  is
\nto  be\tgiven  to the appellant or his pleader\tor  to\tsuch
\nofficer as the State Government may appoint in this  behalf,
\nunder  section 422 and the powers of the Appellate Court  in
\ndismissing the appeal are laid down in section 423, the only
\nrelevant provision for the present purpose being that in  an
\nappeal\tfrom a conviction the Appellate Court might with  or
\nwithout\t the  reduction\t in sentence  and  with\t or  without
\naltering  the  finding\talter the  nature  of  the  sentence
\nbut…………………………  not so as to enhance\t the
\nsame.  Section 430 incorporates the rule as to the  finality
\nof  the\t Judgments and orders passed by an  Appellate  Court
\nupon  appeal  except in cases provided for  in\tsection\t 417
\nwhich  relates\tto appeals on behalf of\t the  Government  in
\ncases  of  acquittal  and Chapter  XXXII  which\t relates  to
\nreference and revision.\t Section 435 deals with the exercise
\nof  the\t revisional powers inter alia by the High  Court  to
\ncall for the records of the inferior criminal courts for the
\npurpose of satisfying itself as to the correctness, legality
\nor  propriety of any finding, sentence or order recorded  or
\npassed\tand as to the regularity of any proceedings of\tsuch
\ninferior  Courts.  Section 438 provides for a  reference  by
\nthe  lower  Appellate Court to the High\t Court\trecommending
\nthat a sentence which has been imposed on a convicted person
\nbe  reversed  or  altered.  Section 439 with  which  we\t are
\nimmediately concerned is couched in the following terms:-
\n(1)In  the  case of any proceeding the record of  which\t has
\nbeen  called  for by itself or which has been  reported\t for
\norders, or which otherwise comes to its
\n126<\/span>
\nknowledge  the High Court may, in its  discretion,  exercise
\nany of the powers conferred on a Court of Appeal by sections
\n423, 426, 427 and 428 or on a Court by section 338, and\t may
\nenhance\t the  sentence; and when the  Judges  composing\t the
\nCourt  of Revision are equally divided in opinion, the\tcase
\nshall be disposed of in manner provided by section 429.
\n(2)No  order  under  this  section  shall  be  made  to\t the
\nprejudice of the accused unless he has had an opportunity of
\nbeing  heard  either  personally or by pleader\tin  his\t own
\ndefence.\n<\/p>\n
   (5)Where under this Code an appeal lies and no appeal  is
\nbrought,  no  proceedings  by  way  of\trevision  shall\t  be
\nentertained at the instance of the party who
\ncould have appealed.\n<\/p>\n
(6)Notwithstanding  anything contained in this section,\t any
\nconvicted person to whom an opportunity has been given under
\nsub-section (2) of showing cause why his sentence should not
\nbe  enhanced  shall, in showing cause, be entitled  also  to
\nshow cause against his conviction.\n<\/p>\n
Section\t 440  lays down that no party has any  right  to  be
\nheard either personally or by pleader before any Court\twhen
\nexercising its powers of revision provided however that\t the
\nCourt may if it thinks fit, when exercising such powers hear
\nany  party  either personally or by pleader and\t nothing  in
\nthat section shall be deemed to affect section 439(2) above.
\nA person convicted of an offence may file in the High  Court
\na  petition  of\t appeal\t or  an\t application  for   revision
\nchallenging his conviction and the sentence passed upon him.
\nThe petition of appeal may be presented by him from jail  or
\nmay  be\t presented  by him to the High Court  in  person  or
\nthrough\t his pleader.  An application for revision also\t may
\nbe similarly presented by him to the High Court.  A petition
\nof appeal presented by him from jail or presented by him  in
\nperson or through his pleader as aforesaid may be  summarily
\ndismissed  by the High Court after perusing the same  if  it
\nconsiders   that   there  is  no   sufficient\tground\t for
\ninterfering, the latter after giving him or
\n127<\/span>
\nhis  pleader  a\t reasonable opportunity of  being  heard  in
\nsupport\t of the same and in appropriate cases after  calling
\nfor  the record of the case.  A notice of appeal  may  issue
\nonly if the High Court does not dismiss the appeal summarily
\nand in that event only there would be a full hearing of\t the
\nappeal in the presence of both the parties.  In the case  of
\nan  application for revision also the same may be  dismissed
\nsummarily  and without even hearing the party personally  or
\nby pleader.  If however the Court deems fit to issue  notice
\nto  the opposite party there would be a full hearing in\t the
\npresence  of  both  the parties.   These  proceedings  would
\nnormally   be  concerned  with\tthe  question  whether\t the
\nconviction can be sustained and the sentence passed upon the
\nconvicted person be set aside or reduced.  There would be no
\nquestion  here\tof  the enhancement of\tthe  sentence.\t The
\nquestion  of  enhancement of the sentence would\t only  arise
\nwhen   the  High  Court\t in  exercise  of   its\t  revisional
\njurisdiction.  under section 439(1) thought it necessary  to
\nissue a notice for enhancement of sentence to the  convicted
\nperson.\t  Even\tthough the Court exercising  its  powers  of
\nrevision would not be bound to bear any party personally  or
\nby  pleader  no\t order under section  439(1)  enhancing\t the
\nsentence  could\t be  made to the prejudice  of\tthe  accused
\nunless\the  has\t had an opportunity of\tbeing  heard  either
\npersonally or by pleader in his own defence.  In that  event
\nsimultaneously with the opportunity given to him under\tsub-
\nsection (2) of showing cause why his sentence should not  be
\nenhanced he would be entitled in showing cause also to\tshow
\ncause  against his conviction by virtue of the provision  of
\nsection 439(6).\n<\/p>\n
The exercise of this right of also showing cause against his
\nconviction may arise in 4 different types of cases:
\n(1)  Where  his\t petition  of  appeal  has  been   summarily
\ndismissed either without hearing him or after hearing him or
\nhis pleader as the case may be;\n<\/p>\n
(2)  When his appeal has been dismissed after a full hearing
\nfollowing  upon\t the notice of appeal being  issued  to\t the
\nopposite party;\n<\/p>\n
128<\/span><\/p>\n
(3)When\t his  application for revision\thas  been  summarily
\ndismissed  either without hearing, him or after hearing\t him
\nor his pleader as the case may be; and
\n(4)Where  his  application for revision has  been  dismissed
\nafter  a full beating following upon a notice issued to\t the
\nopposite party.\n<\/p>\n
When  the  High\t Court issues a notice\tfor  enhancement  of
\nsentence  it is exercising its revisional  jurisdiction\t and
\nthe question that arises for consideration is whether in one
\nor  more of the cases above referred to the High  Court\t has
\njurisdiction to issue the notice of enhancement of  sentence
\nand the convicted person is entitled while showing cause why
\nhis  sentence  should  not be enhanced also  to\t show  cause
\nagainst his conviction.\n<\/p>\n
The  view taken by the Bombay High Court in the cases  noted
\nabove  has been that in all the four cases  mentioned  above
\nthe accused has had an opportunity of showing cause  against
\nhis  conviction and that he is not entitled to a further  or
\nsecond\topportunity of doing so while showing cause why\t his
\nsentence  should not be enhanced.  It has not made any\tdis-
\ntinction  between  the exercise of appellate  or  revisional
\njurisdiction  by  the  High Court  nor\tbetween\t appeals  or
\nrevision  applications dismissed summarily or in limine\t and
\nappeals\t or  revision applications dismissed  after  a\tfull
\nhearing\t in the presence of both the parties.  It  has\talso
\nextended  the  same  principle to  a  reference\t made  under
\nsection 438 and an order passed by the High Court thereupon-
\n“No order on reference”, without even issuing notice to\t the
\napplicant  at  whose instance the Sessions  Judge  made\t the
\nreference.  (Vide Emperor v. Nandlal Chunilal  Bodiwala(1)).
\nThe  Allahabad and the Patna High Courts have followed\tthis
\nview  of  the  Bombay  High Court  in  the  decisions  above
\nreferred  to  and  the\tLahore\tHigh  Court  in\t Emperor  v.
\nDhanalal(2)  also followed the same.  But this\tdecision  of
\nthe  Lahore High Court was overruled by a Special  Bench  of
\nthat Court in Emperor v. Atta
\n(1)  [1945] 48 Bombay L.R. 41 (F.B.).\n<\/p>\n
(2)  [1928] I.L.R. 10 Lahore 241.\n<\/p>\n
129<\/span><\/p>\n
Mohammad(1).   The Special Bench held that the\texercise  of
\nrevisional  jurisdiction  by  the  High\t Court\tis  entirely
\ndiscretionary,\t that\tan  application\t for   revision\t  is
\nentertained as a matter of favour, that no party is entitled
\nto be beard either himself or by pleader when the Court\t in,
\nExercising its revisional jurisdiction and that therefore  a
\ndismissal   of\tan  application\t for  revision\t in   limine
\ntantamounts  to\t a  refusal by the  Court  to  exercise\t its
\nrevisional jurisdiction and the convicted person under those
\ncircumstances is at all events entitled while showing  cause
\nwhy  his sentence should not be enhanced also to show  cause
\nagainst\t his conviction.  It went to the length\t of  holding
\nthat  section  439(6) confers upon the convicted  person  an
\nunfettered and unlimited right of showing cause against\t his
\nconviction, which right cannot be taken away unless there is
\na  judgment in rem which only would operate as a bar to\t the
\ndecision  of the same matter when it arises in the  exercise
\nof what is in effect the exercise of the ordinary  appellate
\njurisdiction.  The Rajasthan High Court in State v.  Bhawani
\nShankar<\/a>(2)  has drawn a distinction between cases where\t the
\naccused\t has not been heard at all and given no\t opportunity
\nto show cause against his conviction his jail appeal  having
\nbeen dismissed under section 421 or his revision application
\nhaving been dismissed without hearing him and cases where he
\nhas  already  been heard and given an  opportunity  to\tshow
\ncause  against his conviction whether it be in appeal or  in
\nrevision  and  whether his dismissal is summary\t or  on\t the
\nmerits\tand held that in the former cases he is entitled  to
\nask  the Court to hear him and thus allow him to show  cause
\nagainst\t his conviction under section 439(6) if a notice  of
\nenhancement is issued to him.\n<\/p>\n
The  principle as to the finality of criminal judgments\t has
\nalso  been  invoked while considering this  question.\tThis
\nprinciple  has\tbeen recognised by this\t Court\tin  Janardan
\nReddy & Others v. The State of
\n(1)  [1943] I.L.R. 25 Lah. 391 (F.B.).\n<\/p>\n
(2)  I.L.R. [1952] 2 Rajasthan 716.\n<\/p>\n
17<\/span>
\n130<\/span><\/p>\n
Hyderabad  &  Others(1)\t at  page 367  where  Fazl  Ali,  J.
\nobserved:-\n<\/p>\n
“It is true that there is no such thing as the principle  of
\nconstructive  res judicata in a criminal case, but there  is
\nsuch a principle as finality of judgments, which applies  to
\ncriminal  as  well as civil cases and is implicit  in  every
\nsystem,\t wherein provisions are to be found  for  correcting
\nerrors\tin  appeal or in revision.   Section  430,  Criminal
\nProcedure Code……….. ………………………..\t has
\ngiven  express recognition to this principle of finality  by
\nproviding that “Judgments and orders passed by an  Appellate
\nCourt  upon appeal shall be final, except in cases  provided
\nfor in section 417 and Chapter XXXII”\n<\/p>\n
Section\t 417 relates to appeals on behalf of  Government  in
\ncases of acquittal by any Court other than a High Court\t and
\nChapter\t XXXII relates to reference and revision which\talso
\nare powers exercised by the High Court over the judgments or
\norders\tof inferior Courts, thus excluding from the  purview
\nof  this  exception all judgments and orders passed  by\t the
\nHigh  Court as an Appellate Court.  Section 430 does not  in
\nterms  give  finality  to the judgments of  the\t High  Court
\npassed\tin exercise of its revisional jurisdiction, but\t the
\nsame  principle\t would\tapply  whether\tthe  High  Court  is
\nexercising  its\t appellate jurisdiction\t or  its  revisional
\njurisdiction, because in either case the High Court which is
\nthe  highest  Court  of\t Appeal\t in  the  State\t would\thave
\npronounced  its\t judgment,which judgment would\treplace\t the
\njudgment of the lower Court and would be final.\t Even  while
\nexercising its revisional powers under section 439 the\tHigh
\nCourt  exercises any of the powers conferred on a  Court  of
\nAppeal by sections 423, 426, 427 and 428 and it is in effect
\nan  exercise of the appellate jurisdiction though  exercised
\nin the manner indicated therein.  This principle of finality
\nof criminal judgments therefore would equally apply when the
\nHigh  Court is exercising its revisional jurisdiction.\tOnce
\nsuch a judgment has been pronounced by the High Court either
\nin   the  exercise  of\tits  appellate\tor  its\t  revisional
\njurisdiction no review or
\n(1)  1951 S C.R. 344.\n<\/p>\n
131<\/span><\/p>\n
revision can be entertained against that judgment and  there
\nis  no provision in the Criminal Procedure Code which  would
\nenable even the High Court to review the same or to exercise
\nrevisional jurisdiction over the same.\tThe judgment of\t the
\nHigh Court would replace that of the lower Court which would
\nno  longer be subsisting but would be replaced by  the\tHigh
\nCourt  judgment and thus it is only the High Court  judgment
\nwhich  would  be  final and would have\tto  be\texecuted  in
\naccordance  with  law  by the  Courts  below.\tSection\t 425
\nrequires  that whenever a case is decided on appeal  by\t the
\nHigh  Court it should certify its judgment or order  to\t the
\nCourt  by  which  the finding, sentence\t or  order  appealed
\nagainst\t was recorded or passed and the Court to  which\t the
\nHigh  Court certifies its judgment or order shall  thereupon
\nmake such orders as are conformable to the judgment or order
\nof  the\t High Court and, if necessary, the record  shall  be
\namended in accordance therewith.  Section 442 similarly pro-
\nvides that when a case is revised under Chapter XXXII by the
\nHigh Court it shall in the same manner certify its  decision
\nor  order  to the Court by which the  finding,\tsentence  or
\norder revised was recorded or passed and the Court to  which
\nthe  decision or order is so certified shall thereupon\tmake
\nsuch orders as are conformable to the decision so  certified
\nand, if necessary, the record shall be amended in accordance
\ntherewith.   These provisions are enacted because  the\tHigh
\nCourt  itself  does  not execute or carry  into\t effect\t the
\nsentences or orders passed against the convicted persons but
\nthe  work  of such execution has necessarily to be  done  in
\nconformity  with the sentences or orders passed by the\tHigh
\nCourt  by  the\tCourts which  originally  passed  the  same.
\nNevertheless the latter Courts execute or carry into  effect
\nthe  sentences or orders which are ultimately passed by\t the
\nHigh  Court and are invested with finality.  In these  cases
\nthere  is  no  occasion\t at all\t for  the  exercise  of\t the
\nrevisional powers by the High Court under section 439(1)  of
\nthe Criminal Procedure Code.  That jurisdiction can only  be
\nexercised  by  the  High  Court\t when  the  record  of\t the
\nproceedings of Subordinate Courts has been called for
\n132<\/span>
\nby itself or the case has been reported to it for orders  or
\nhas  otherwise come to its knowledge and the High Court\t suo
\nMotu  on the application of the party interested  thinks  it
\nfit to issue a notice for enhancement of sentence.  This  is
\na clear exercise of the revisional jurisdiction of the\tHigh
\nCourt  and can be exercised by it only qua the judgments  of
\nthe  lower  Courts and certainly not qua its  own  judgments
\nwhich have replaced those of the lower Courts.
\nThe Criminal Procedure Code unlike the Civil Procedure\tCode
\ndoes not define “judgment” but there are observations to  be
\nfound  in a Full Bench decision of the Madras High Court  in
\nEmperor\t  v.   Chinna  Kaliappa\t Gounden   and\t another(1),
\ndiscussing the provisions of section 366 and section 367  of
\nthe Criminal Procedure Code and laying down that an order of
\ndismissal  under  section 203 is not a judgment\t within\t the
\nmeaning\t of section 369.  The principle of autrefois  acquit
\nalso  was held not to apply as there was no trial  when\t the
\ncomplaint  was dismissed under section 203 with\t the  result
\nthat the dismissal of a complaint under section 203 was held
\nnot to operate as a bar to the rehearing of the complaint by
\nthe  same Magistrate even when such order of  dismissal\t had
\nnot  been set aside by a competent authority.\tSection\t 366
\nlays  down what the language and contents of a judgment\t are
\nto  be\tand  section 367 provides that the  judgment  is  to
\ncontain\t the decision and the reasons for the  decision\t and
\nunless\tand  until  the judgment  pronounced  by  the  Court
\ncomplied  with these requirements it would not amount  to  a
\njudgment and such a judgment when signed would not be liable
\nto be altered or reviewed except to correct a clerical error
\nby  virtue of the provisions of section 369 save as  therein
\nprovided.  These observations of the Madras High Court\twere
\nquoted\twith approval by Sulaiman, J. in Dr. Hori Ram  Singh
\nv. Emperor(“).\tHe observed that the Criminal Procedure Code
\ndid  not define a judgment but various sections of the\tCode
\nsuggested  what it meant.  He then discussed those  sections
\nand concluded that “judgment” in the Code meant a judg-
\n(1) [1905] I.L.R. 29 Mad. 126.\n<\/p>\n
(2) A.I.R. 1939 Federal Court 43.\n<\/p>\n
133<\/span><\/p>\n
ment of conviction or acquittal.  Reference was then made to
\nthe  observations of Sri Arnold White, C. J. in\t Emperor  v.
\nChinna Kaliappa Gounden & another(1) which were followed  by
\nanother\t Division Bench of the Madras High Court in  Emperor
\nv.  Maheshwara Kondaya (2) and it was held that an order  of
\ndischarge  was not a judgment as “a judgment is intended  to
\nindicate  the final order in a trial terminating  in  either
\nthe  conviction or acquittal of the accused”.  A Full  Bench
\nof  the\t Bombay High Court in Emperor  v.  Nandlal  Chunilal
\nBodiwala(3) pronounced that a judgment is the expression  of
\nthe  opinion of the Court arrived at after  dueconsideration
\nof  the evidence and all the arguments.\t It was pointed\t out
\nthat  sections 366 and 367 applied to the judgments  of\t the
\ntrial  Court and section 424 dealing with the  judgments  of
\nthe Appellate Courts provided that the rules relating to the
\njudgments  of a Trial Court shall apply so far as may  ”  be
\npracticable  to\t the judgment of any Appellate\tCourt  other
\nthan a High Court.  It followed therefore that there was  no
\ndefinite rule as to what the judgment of a High Court acting
\nin  its\t appellate as well as  its  revisional\tjurisdiction
\nshould\tcontain.  It was quite natural because the  judgment
\nof   the  High\tCourt  in  its\tcriminal  jurisdiction\t was
\nordinarily final and did not therefore require the statement
\nof  any\t reasons whether the High Court was  exercising\t its
\nappellate   or\t revisional  jurisdiction.    The   judgment
\nhowsoever  pronounced  was  however the\t expression  of\t the
\nopinion\t of the Court arrived at after due consideration  of
\nthe  evidence  and  all the arguments  and  would  therefore
\neither be a judgment of conviction or acquittal and where it
\nwould not be possible to predicate of the pronouncement that
\nit was such an expression of opinion the pronouncement could
\ncertainly not be taken as the judgment of the High Court.
\nA  judgment pronounced by the High Court in the exercise  of
\nits  appellate or revisional jurisdiction after issue  of  a
\nnotice\tand  a\tfull hearing in the  presence  of  both\t the
\nparties would certainly be arrived at after
\n(1) [1905] I.L R. 29 Mad. 126.\n<\/p>\n
(2) [1908] I.L.R 31 Madras 543.\n<\/p>\n
(3)  [1945] 48 Bom.  L.R. 41 (F.B.).\n<\/p>\n
134<\/span><\/p>\n
due consideration of the evidence and all the arguments\t and
\nwould  therefore  be  a\t judgment  and\tsuch  judgment\twhen
\npronounced  would replace the judgment of the  lower  Court,
\nthus  constituting the judgment of the High Court  the\tonly
\nfinal judgment to be executed in accordance with law by\t the
\nCourt below.  When however a petition of appeal presented by
\na  convicted person from jail is summarily  dismissed  under
\nsection\t 421  or  a  revision application  made\t by  him  is
\ndismissed summarily or in liming without hearing him or\t his
\npleader\t what-the High Court does is to refuse to  entertain
\nthe  petition  of appeal or the criminal  revision  and\t the
\norder  passed  by the High Court  -“dismissed  or  rejected”
\ncannot\tbe said to be the expression of the opinion  of\t the
\nCourt arrived at after due consideration of the evidence and
\nall  the arguments.  It is a refusal to admit the appeal  or
\nthe  criminal  revision\t so that notice\t be  issued  to\t the
\nopposite  party\t and  the matter be  decided  after  a\tfull
\nhearing\t in the presence of both the parties.  It  would  be
\nonly after the appeal or the criminal revision was  admitted
\nthat  such a notice would issue and the mere refusal by\t the
\nHigh Court to entertain the appeal or the criminal  revision
\nwould certainly not amount to a judgment.  The same would be
\nthe position when a reference was made by the lower Court to
\nthe  High  Court  under section 438 and the  High  Court  on
\nperusing  the  reference  made an  order-“no  order  on\t the
\nreference”-as the High Court on a consideration of the terms
\nof  the reference must have come to the conclusion  that  no
\nprima\tfacie  case  has  been\tmade  out  to\twarrant\t  an
\ninterference on its part.  If the High Court thought that it
\nwas  a\tprima  facie  case for\tits  interference  it  would
\ncertainly entertain the reference and issue a notice to\t the
\nparties\t concerned to show cause why the judgment and  order
\npassed by the lower Court should not be revised.
\nWhen a petition of appeal is presented to the High Court  by
\nthe  convicted\tperson or his pleader section  421  provides
\nthat no such appeal should be dismissed unless the appellant
\nor  his\t pleader has had a reasonable opportunity  of  being
\nheard in support of
\n135<\/span>
\nthe  same  and\tthe High Court might  before  dismissing  an
\nappeal\tunder that section, call for the record of the\tcase
\nbut  would not be bound to do so.  Even in such a  case\t the
\nhearing\t accorded to the appellant or his pleader  would  be
\nwith  a view to determine whether there was a prima ‘  facie
\ncase  made out to warrant its interference in  appeal.\t The
\nappellant  or his pleader would be heard in support of\tthat
\nposition and if he satisfied the High Court that there was a
\nprima  facie case for its interference the High Court  would
\nadmit the appeal and order a notice to issue to the opposite
\nparty  in which event the appeal would be. decided  after  a
\nfull  hearing  in  the presence of both\t the  parties.\t The
\ncalling\t for  the  records  of\tthe  case  also\t though\t not
\ncompulsory  but\t discretionary with the Court would  be\t for
\nthis very purpose, viz., to determine whether a prima  facie
\ncase  for its interference was made out.  The whole  purpose
\nof the hearing accorded to the appellant or his pleader even
\nafter  calling\tfor  the records of the\t case  would  be  to
\ndetermine  whether a prima facie case for  its\tinterference
\nwas made out and it would not be within the province of\t the
\nCourt  at that stage to fully consider the evidence  on\t the
\nrecord and hear arguments from the appellant or his  pleader
\nwith  a\t view to determine whether the conviction  could  be
\nsustained  or the sentence passed upon the accused could  be
\nreduced.   The\tsetting\t aside of  the\tconviction  and\t the
\nreduction, if any, in the sentence could only be  determined
\nby  the Court after notice was issued to the opposite  party
\nand  a full hearing took place in the presence of  both\t the
\nparties.   Even\t in  the case of a summary  dismissal  of  a
\npetition  of appeal under these circumstances  the  position
\nwould certainly not be any different from that which obtains\n<\/p>\n
-in  the.  case of a summary dismissal of  the\tpetition  of
\nappeal\tpresented by the convicted person from jail  or\t the
\nsummary\t dismissal of an application for  criminal  revision
\nmade  by  him or on his behalf to the High  Court.   In\t all
\nthese  cases  there will be no judgment of  the\t High  Court
\nreplacing the judgment of the lower Court and the action  of
\nthe  High Court would only amount to a refusal by  the\tHigh
\nCourt to admit the
\n136<\/span>
\npetition of appeal or the criminal revision and issue notice
\nto the opposite party with a view to the final determination
\nof the questions &rising in the appeal or the revision.\t The
\norder  dismissing the appeal or criminal revision  summarily
\nor  in\tliming would no doubt be a final order of  the\tHigh
\nCourt  not  subject to review or revision even by  the\tHigh
\nCourt  itself  but  would  not\ttantamount  to\ta   judgment
\nreplacing  that\t of the lower Court.  The  convicted  person
\nwould  be  bound  by that order and would  not\tbe  able  to
\npresent\t another  petition  of\tappeal\tor  application\t for
\ncriminal revision challenging the conviction or the sentence
\npassed\tupon him by the lower Court.  But such\torder  would
\nnot  have the effect of replacing the judgment or  order  of
\nthe lower Court which would in that event be subject to\t the
\nexercise of revisional jurisdiction by the High Court  under
\nsection\t 439 of the Criminal Procedure Code at the  instance
\nof the State or an interested party.  In the cases (1) & (3)
\nnoted  above therefore there being no judgment of  the\tHigh
\nCourt replacing the judgment of the lower Court section\t 439
\n(1)  would  operate and -the High Court in exercise  of\t its
\nrevisional   jurisdiction   either  Suo\t motu  or   on\t the
\napplication  of the interested party would be in a  position
\nto  issue the notice of enhancement of sentence which  would
\nrequire to be served on the accused under section 439(2)  so
\nthat  he  would have an opportunity of\tbeing  heard  either
\npersonally or by pleader in his own defence.  In that  event
\nthe  convicted\tperson\tin showing cause  why  his  sentence
\nshould not be enhanced would also be entitled to show  cause
\nagainst his conviction.\n<\/p>\n
It follows therefore that in the case of a summary dismissal
\nor  a  dismissal  in  limine  of  petitions  of\t appeal\t  or
\napplications  for  criminal revision even if  the  convicted
\nperson or his pleader has been heard by the High Court\twith
\na  view to determine if there is a prima facie case for\t its
\ninterference,  the convicted person to whom  an\t opportunity
\nhas been given under section 439(2) of showing cause why his
\nsentence  should not be enhanced would in showing  cause  be
\nentitled also to show cause against his conviction.  The
\n137<\/span>
\nsame would also be the position when a reference made by the
\nlower  Court  to  the High Court under section\t438  of\t the
\nCriminal  Procedure  Code  is rejected\tby  the\t High  Court
\nwithout\t issuing notice to the parties concerned  by  merely
\nordering-“no  order on the reference”.\tIn cases  where\t the
\npetition of appeal or the application for criminal  revision
\nis admitted by the High Court and a notice is issued to\t the
\nopposite  party and the High Court maintains the  conviction
\nwith  or  without  reducing the\t sentence  passed  upon\t the
\naccused\t the judgment of the High Court in the\texercise  of
\nits  appellate or revisional jurisdiction would replace\t the
\njudgment  of the lower Court and there would be no  occasion
\nat all for the exercise by the High Court of its  revisional
\npowers under section 439(1) which can only be exercised\t qua
\nthe judgments of the lower Courts and certainly not qua\t its
\nown  judgments.\t  The  cases (2) &  (4)\t noted\tabove  would
\ntherefore be outside the purview of section 439(1). If\tthat
\nis  so there would be no question accused an opportunity  of
\nbeing heart sonally or by pleader in his defence 439(2)\t act
\nthe  provisions of section 439(6) would certainly  not\tcome
\ninto  operation\t at  all.  If no notice\t of  enhancement  of
\nsentence  could issue under these circumstances no  question
\nat all could arise of the convicted person showing cause why
\nhis  sentence should not be enhanced and being\tentitled  in
\nshowing cause also to show cause against his conviction.
\nIt  follows by way of a necessary corollary that  no  notice
\nfor enhancement of sentence can be issued by the High  Court
\nwhen a judgment is pronounced by it after a full hearing  in
\nthe  presence of both the parties either in exercise of\t its
\nappellate  or its revisional jurisdiction.  Such notice\t for
\nenhancement of sentence can be issued by it either suo\tmotu
\nor at the instance of an interested party when the  judgment
\nof  the lower Court subsists and is not replaced by its\t own
\njudgment in the exercise of its appellate or its  revisional
\njurisdiction.  When the judgment of the lower Court has been
\nunder its scrutiny on notice being issued to 18
\n18<\/span>
\n138<\/span>
\nthe  opposite party and on a full hearing accorded  to\tboth
\nthe  parties notice for enhancement of sentence can only  be
\nissued\tby  it before it pronounces its\t judgment  replacing
\nthat  of the lower Court.  When such hearing is in  progress
\nit is incumbent upon the High Court or the opposite party to
\nmake up its mind before such judgment is pronounced  whether
\na  notice  for enhancement of sentence should issue  to\t the
\naccused.   There would be ample time for the opposite  party
\nto make up its mind whether it should apply for a notice  of
\nenhancement  of\t the  sentence.\t The High Court\t also  on  a
\nperusal\t of  the  record and  after  hearing  the  arguments
\naddressed  to it by both the parties would be in a  position
\nto  make up its mind whether it should issue such notice  to
\nthe accused.  But if neither the opposite party nor the High
\nCourt does so before the hearing is concluded and the  judg-
\nment  is pronounced it will certainly not be open to  either
\nof them to issue such notice for enhancement of sentence  to
\nthe accused, because then the judgment of the High Court  in
\nthe  exercise  of its appellate or  revisional\tjurisdiction
\nwould  replace\tthat of the lower Court and  section  439(1)
\nwould  have  no\t operation at all.  Even in the\t case  of  a
\nreference  by  the  lower Court under  section\t438  of\t the
\nCriminal  Procedure  Code  the\tHigh Court  if\tit  did\t not
\nsummarily reject such a reference would issue notice to\t the
\nparties\t concerned and then there would be occasion  for  it
\neither suo motu or on the application of an interested party
\nto  issue  a notice of enhancement of  sentence\t before\t the
\nhearing\t was concluded and a judgment was pronounced by\t it.
\nThe  procedure obtaining in the several High Courts  to\t the
\neffect\tthat  notice for enhancement of sentence  can  issue
\neven  after  the  appeal or  the  application  for  criminal
\nrevision  is  disposed\tof by the High\tCourt  and  judgment
\npronounced  thereupon is not correct and is contrary to\t the
\ntrue position laid down above.\n<\/p>\n
It  was\t contended that the non-obstante clause\t in  section
\n439(6),\t viz.  “notwithstanding anything contained  in\tthis
\nsection”  was  meant to confer upon the convicted  person  a
\nright to show cause against his
\n139<\/span>
\nconviction  in those cases where a notice to show cause\t why
\nhis sentence should not be enhanced was issued against\thim,
\nwhatever be the circumstances under which it might have been
\nissued.\t  Once you had a notice for enhancement of  sentence
\nissued\tagainst the convicted person this right\t of  showing
\ncause  against his conviction also accrued to him  and\tthat
\nright  could  be exercised by him even though he had  on  an
\nearlier occasion unsuccessfully agitated the maintainability
\nof  his\t conviction either on appeal or in  revision.\tThis
\nnon-obstante  clause could not in our opinion, override\t the
\nrequirements  of  section  439(1)  which  provides  for\t the
\nexercise of revisional powers by the High Court only qua the
\njudgments  of  the lower Courts.  Section 439(6)  would\t not
\ncome  into  operation unless a notice  for  enhancement\t was
\nissued under section 439(2) and a notice for enhancement  of
\nsentence under section 439(2) could not be issued unless and
\nuntil  the  High  Court\t thought  it  fit  to  exercise\t its
\nrevisional powers under section 439(1) qua the judgments  of
\nthe  lower  Courts.  The High Court has no  jurisdiction  to
\nexercise  any  revisional powers qua its  own  judgments  or
\norders, the same being invested with finality and  otherwise
\nbeing outside the purview of the exercise of its  revisional
\njurisdiction,  and  the\t only purpose  of  the\tnon-obstante
\nclause\tin  section  439(6) can be to  allow  the  convicted
\nperson also to show cause against his conviction when he  is
\nshowing\t cause\twhy his sentence should not be\tenhanced  in
\nspite of the prohibition contained in section 439(5).  Where
\nan  appeal lies under the Code and no appeal is\t brought  no
\nproceedings  by\t way of revision can be entertained  at\t the
\ninstance  of  the  party who could have\t appealed.   If\t the
\nconvicted person could have ‘filed an appeal but had  failed
\nto  do so he could certainly not approach the High Court  in
\nrevision and ask the High Court to set aside his conviction.
\nIf  he could not file any application in revision  he  could
\nnot show cause against his conviction under section 439\t (1)
\nof the Criminal Procedure Code and it was in order to remove
\nthis  disability  that the non-obstante\t clause\t in  section
\n439(6) was enacted so that when the High
\n140<\/span>
\nCourt\twas  exercising\t its  revisional  jurisdiction\t the
\nconvicted person could show cause against his conviction  in
\nspite of the fact that otherwise he could not have been able
\nto  do\tso, be not having appealed when an  appeal  lay\t and
\ntherefore  not\tbeing  entitled to file\t an  application  in
\ncriminal   revision   and   challenge\tthe   validity\t  or
\nmaintainability of his conviction.  Section 439(6) therefore
\nconfers\t on  the  convicted  person a  right  which  he\t can
\nexercise  in  the  event  of a\tnotice\tfor  enhancement  of
\nsentence  being\t issued against him in the exercise  of\t the
\nrevisional  jurisdiction by the High Court in spite  of\t the
\nfact  that he was not entitled to question the\tvalidity  or
\nmaintainability of his conviction in a substantive  applica-
\ntion for criminal revision filed by him for the purpose\t and
\nthis  right  is\t available to him only\tif  the\t High  Court
\nexercising its revisional jurisdiction under section  439(1)
\nthinks\tit fit to issue a notice of enhancement of  sentence
\nagainst\t him under section 439(2) and in that event  he\t has
\nthe  right  also to show cause against his  conviction\twhen
\nshowing cause why his sentence should not be enhanced.
\nWe shall now review the decisions of the various High Courts
\nto which our attention has been drawn by the learned counsel
\nappearing before us.  Turning first to the decisions of\t the
\nBombay\tHigh  Court we were referred to\t Emperor  v.  Chinto
\nBhairava  (1),\ta  decision given in  the  year\t 1908  which
\nrecognised the invariable practice of that Court for over 25
\nyears  according to which the accused in showing  cause\t why
\nthe sentence should not be enhanced was not allowed to\tdis-
\ncuss  the  evidence and satisfy the Court that he  had\tbeen
\nwrongly convicted.  The practice of the Court in such  cases
\nwas  to accept the conviction as conclusive and to  consider
\nthe  question of enhancement of sentence on that basis.\t  It
\nwas  open  to  the  accused to apply  for  revision  of\t the
\nconviction,  but having failed to avail himself of that,  he
\ncould  not  be\tpermitted  to assail  the  conviction  in  a
\nproceeding where the sole question was whether the  sentence
\npassed by the lower Court was adequate or not.\tIt may be
\n(1) [1908] I.L.R. 32 Bom.  162.\n<\/p>\n
141<\/span><\/p>\n
noted  that this decision was in the year 1908\tlong  before
\nthe amendment of section 439 of the Criminal Procedure\tCode
\nby Act XVIII of 1923 by adding subsection (6) thereto.
\nThe  next decision to which we were referred was Emperor  v.
\nMangal\tNaran(1).   In\tthat case  simultaneously  with\t the
\nadmission of an appeal filed by the accused the Court issued
\na  notice for enhancement of sentence.\tWhen the appeal\t and
\nthe  notice  came for hearing together before  the  Division
\nBench  the  Court  observed that such  a  practice  was\t not
\ndesirable.   It was likely to produce an impression  on\t the
\nmind  of an illiterate accused in jail that it was  proposed
\nto  enhance the sentence because he had appealed.   MacLeod,
\nC.J. there expressed an opinion that if after an appeal\t had
\nbeen  heard on its merits and dismissed a notice to  enhance
\nthe sentence was issued, the accused had still the right  to
\nshow cause against his conviction, though any attempt to set
\naside the conviction would not have much chance of  success.
\nHe  however  expressed his preference in favour of  the\t old
\npractice,  viz.\t first to deal with the appeal and  then  to
\nconsider whether a notice to enhance should issue.  No ques-
\ntion had arisen for consideration of the Court in that\tcase
\nas  to\tthe true construction of the  provision\t of  section
\n439(6) of the Criminal Procedure Code and the only  question
\nconsidered by the Court there was what should be the  proper
\nprocedure   to\tbe  adopted  when  issuing  a\tnotice\t for
\nenhancement  of\t sentence,  whether  it\t should\t be   issued
\nsimultaneously with the admission of the appeal or after the
\nappeal was finally heard and disposed of.\n<\/p>\n
This  opinion  expressed  by  MacLeod,\tC.J.  was  therefore
\ntreated as obiter in Emperor v. Jorabhai Kisanbhai(2).\t The
\nquestion  that arose for consideration of the Court in\tthat
\ncase  was  whether  after an appeal  of\t an  accused  person
\nagainst his conviction and sentence had been dismissed by  a
\nDivision Bench of the High Court and a notice to enhance the
\nsentence  was  issued  on an application on  behalf  of\t the
\nGovernment the application for enhancement of sentence could
\nbe
\n(1) (1924) 27 Bom.  L.R. 355.\n<\/p>\n
(2) [1926] I.L.R, 50 Bom. 783.\n<\/p>\n
142<\/span><\/p>\n
heard  on its merits by another Division Bench of  the\tHigh
\nCourt treating the conviction as correct or the accused\t was
\nunder  such circumstances not entitled under section  439(6)
\nto be re-heard on the merits of his conviction.\t The  appeal
\nfiled by the accused against his conviction and sentence had
\nbeen  dismissed on the 7th April, 1926.\t After judgment\t was
\ndelivered  by  the  Court, the\tGovernment  Pleader  applied
\norally\tfor  issue  of a notice\t for  enhancement  and\tthat
\napplication  was granted.  The application was heard on\t the
\n17th  June  1926 and it was urged on behalf of\tthe  accused
\nthat  the  only proper procedure was to issue a\t notice\t for
\nenhancement of sentence before the appeal had been  actually
\ndisposed of and that once the appeal was disposed of by\t the
\nCourt there was no legal power to enhance the sentence under
\nsection 439 of the Criminal Procedure Code.  That contention
\nwas  negatived the Court observing that so far as the  point
\nof  procedure was concerned there was no hard and fast\trule
\nas  to\tthe  appropriate time for the  issue  of  notice  of
\nenhancement of sentence by the High Court and resorting,  to
\nthe  principle of the finality of judgments as\tregards\t the
\naccused\t being concluded by the judgment of the\t High  Court
\ndismissing  his\t appeal and confirming the  sentence  passed
\nupon him.  The judgment there was interpreted as  confirming
\nthe  conviction and rejecting the appeal as to the  sentence
\nin the sense that it saw no reason to reduce it and that was
\nnot  treated as a decision that the sentence should  not  be
\nenhanced  if a proper procedure was taken such as  the\tCode
\nallowed for the purpose and therefore so far as the judgment
\nwent  there was nothing which in any way tied the  hands  of
\nthe  Court.  Sections 369 and 430 of the Criminal  Procedure
\nCode   were  referred  to  and\tthe  Court  held  that\t the
\nobservations of MacLeod, C.J. in Emperor v. Mangal  Naran(1)
\nabove  referred to were obiter dicta not binding  upon\tthem
\nand the application must be heard on the merits treating the
\nconviction  as\tcorrect\t in view of  the  dismissal  of\t the
\nappeal.\n<\/p>\n
It is no doubt true as observed by Madgavkar, J.
\n(1)  [1924] 27 Bom.  L.R. 355.\n<\/p>\n
143<\/span><\/p>\n
in regard to the practice as to the proper time for  issuing
\nof  the notice of enhancement that the question of  adequacy
\nof  punishment is, in the first instance, a matter  for\t the
\nGovernment  and for the District Magistrate.  From the\ttime
\nwhen  the  sentence is passed, and at all events up  to\t the
\ntime when anappeal is admitted and notice is received, it is
\nopen to Government to consider the sufficiency of a sentence
\nand before hearing of the appeal, to apply to the High Court
\nfor enhancement of the sentence if they are so advised.\t  In
\nthat  event the appeal as well as the notice of\t enhancement
\nwould  be  heard together and the Court hearing\t the  appeal
\nwould  apply its mind not only to the question\twhether\t the
\nconviction  should  be confirmed but also  to  the  question
\nwhether\t the sentence should be reduced or enhanced  as\t the
\ncase  may  be’ It is only in rare instances  that  the\tHigh
\nCourt  considers for itself the question of  enhancement  of
\nsentence  and  only  if\t no action has\tbeen  taken  by\t the
\nGovernment  and if the High Court thinks that the  interests
\nof justice imperatively demand it.  In such a case it  would
\nbe  a matter for consideration by the High Court whether  it
\nshould\tissue  notice at the very time of the  admission  or
\nwhether it should do so while disposing of the appeal on the
\nmerits\tas  to\tthe conviction.\t  The  observations  of\t the
\nlearned Judge however in so far as they seem to suggest that
\nthe  appeal should be disposed of first and the question  of
\nenhancement  of\t sentence should be considered by  the\tsame
\nBench\timmediately  afterwards\t or  that  the\tnotice\t for
\nenhancement could be issued by the Court after the  disposal
\nof  the\t appeal on the merits as to conviction do  not\ttake
\ninto account the fact that after the judgment is  pronounced
\nand  the  conviction is confirmed involving as\ta  necessary
\ncorollary thereof the confirming of the sentence passed upon
\nthe accused also if the same is not reduced, the judgment of
\nthe  High  Court replaces that of the lower  Court  and\t the
\nexercise  of any revisional powers by the High Court by\t way
\nof  enhancement\t of the sentence  is  necessarily  eschewed.
\nThese revisional powers could only be exercised by the\tHigh
\nCourt qua the judg-\n<\/p>\n
144<\/span><\/p>\n
ment  of the lower Court and once that judgment is  replaced
\nby  the\t judgment of the High Court, the High Court  has  no
\nfurther\t powers\t to review or revise its  own  judgment\t and
\nenhance\t the  sentence which is thus passed by it  upon\t the
\naccused.   The\tprinciple as to the  finality  of  judgments
\napplied by the Court by virtue of the provisions of  section
\n369  and section 430 of the Criminal Procedure\tCode  should
\nnot have been confined merely to the question of  confirming
\nthe  conviction\t but also should have been extended  to\t the
\nconfirming  of the sentence in so far as the High Court\t did
\nnot see any reason to reduce the sentence already passed  by
\nthe lower Court upon the accused.  When the High Court hears
\nthe appeal on its merits it does not apply its mind only  to
\nthe question whether the conviction should be confirmed\t but
\nalso applies its mind to the adequacy of the sentence passed
\nupon  the accused by the lower Court.  In thus applying\t its
\nmind  to the question of sentence it also considers  whether
\nthe  sentence passed upon the accused by the lower Court  is
\nadequate  in the sense that it is either such as  should  be
\nreduced or is such as should be enhanced.  The questions  of
\nthe reduction of the sentence or enhancement of the sentence
\nare  not  to  be viewed as if  they  fall  into\t water-tight
\ncompartments and the mind of the Court hearing the appeal on
\nmerits is directed to the consideration of the matter in all
\nits aspects -including the confirming of the conviction\t and
\nthe reduction or enhancement of the sentence as the case may
\nbe.  The principle of finality of judgments should therefore
\nbe  extended not only to the question of the  confirming  of
\nthe conviction but also -to the question as to the  adequacy
\nof  the sentence, whether the sentence which is passed\tupon
\nthe accused by the lower Court should be reduced,  confirmed
\nor enhanced.  Once therefore the judgment of the High  Court
\nreplaces that of the lower Court there is no question  which
\ncan  ever  arise of the exercise by the High  Court  of\t its
\nrevisional  powers  under  section 469(1)  of  the  Criminal
\nProcedure  Code\t and the proper procedure therefore  if\t the
\nHigh  Court  thought  it  fit either  suo  motu\t or  on\t the
\napplication of the interested party
\n145<\/span>
\nto issue the notice of enhancement of sentence, is to  issue
\nthe  said  notice  before  the\thearing\t of  the  appeal  is
\nconcluded  and the judgment of the High Court in  appeal  is
\npronounced.   We  are  therefore of  the  opinion  that\t the
\ndecision  reached by the High Court of Bombay in Emperor  v.
\nJorabhai(1)  was not correct in so far as it held  that\t the
\nnotice\tof enhancement could be issued by the High Court  at
\nthe  instance of the Government after the dismissal  of\t the
\nappeal on merits.  The notice for enhancement issued in that
\ncase  was not competent and should not have been  issued  at
\nall by the High Court.\n<\/p>\n
The  decision  in  Emperor v. Jorabhai(1)  was\tfollowed  in
\nEmperor v. Koya Partab(2) which extended the same  principle
\nto  an\tappeal which had been presented from  jail  and\t was
\nsummarily  dismissed  under  section  421  of  the  Criminal
\nProcedure Code.\t While dismissing the same the Court  issued
\na notice for enhancement.  When the notice came for  hearing
\nthe  accused contended that he was entitled to be  heard  on
\nthe  merits as to whether he should have been  convicted  or
\nnot  relying upon the provisions of section  439(6).   Beau-
\nmont,  C.J. relied upon the -provisions of section  430\t and
\nobserved that the accused was not at liberty to be heard  on
\nthe merits.  The judgment of the Court of Appeal  dismissing
\nthe appeal on the 9th June 1930 was a final order which\t the
\nCourt was not at liberty to differ from and the non-obstante
\nclause in – section 439(6) did not entitle the accused to go
\nbehind section 430 and to show cause against his  conviction
\nafter  his  appeal had been dismissed.\t The  learned  Chief
\nJustice followed the decision in Emperor v. Jorabhai (1) and
\nobserved that the only distinction between that case and the
\none  before him was that case had been heard on\t the  merits
\nand   not  summarily  dismissed.   But\tin  his\t view\tthat
\ndistinction was not one of principle.  We are of the opinion
\nthat  the  order which had been pronounced by the  Court  of
\nAppeal\ton the 9th June 1930 was not a judgment of the\tHigh
\nCourt which replaced that of the lower Court and
\n(1)  [1926] I.L.R. 50 Bom. 783.\n<\/p>\n
(2) [1930] 32 Bom.  L.R. 1286.\n<\/p>\n
19<\/span>
\n146<\/span><\/p>\n
even though it might come within the description of an order
\nwithin\tthe  meaning of section 430 it was  not\t a  judgment
\nwithin the meaning of the term set out above and not being a
\njudgment  was  no  bar to the  accused\tshowing\t cause\talso
\nagainst his conviction when showing cause against the notice
\nfor  enhancement.   The matter was one\tfalling\t within\t the
\ncategory  of case No. I noted above and it was open  to\t the
\naccused\t even  though his petition of appeal from  jail\t was
\nsummarily dismissed under section 421 to urge while  showing
\ncause against the notice of enhancement of sentence also  to
\nshow  cause  against  his  conviction.\t This  decision\t was
\ntherefore in our opinion incorrect and the accused ought  to
\nhave  been heard on the merits as to whether he should\thave
\nbeen convicted or not.\n<\/p>\n
Emperor\t v.  Ramchandra Shankarshet Uravane(1)\twas  a\tcase
\nwhere  the  High Court admitted the appeal and at  the\tsame
\ntime  issued  a\t notice to the accused\tfor  enhancement  of
\nsentence.   The\t observations of MacLeod, J. in\t Emperor  v.
\nMangal Naran(2) were followed in spite of the fact that they
\nbad  been held obiter by the Division Bench of the Court  in
\nEmperor\t v. Jorabhai (3).  Emperor v. Jorabhai (3) was\talso
\nreferred  to and it was held that it was  neither  necessary
\nnor  desirable\tfor the High Court to issue  a\tnotice,\t for
\nenhancement  of\t sentence at the time of  admission  of\t the
\nappeal.\t  It  was  however  observed that  it  was  open  to
\nconsider  the question of enhancement of sentence after\t the
\nappeal had been heard.\tIf those observations were meant  to
\nconvey that the question of enhancement of sentence could be
\nconsidered  after  the\tappeal\thad  been  disposed  of\t and
\njudgment  was pronounced by the High Court we do  not  agree
\nwith  the same.\t But if they were meant to convey  that\t the
\nHigh  Court  could  hear  the accused  on  the\tquestion  of
\nenhancement of the sentence at the same time when his appeal
\nwas  heard,  before  pronouncement of the  judgment  on\t the
\nquestion of the conviction and the
\n(1)  [1932] 35 Bom.  L R. 174.\n<\/p>\n
(2)  [1924] 27 Bom.  L.R. 355.\n<\/p>\n
(3)  [1926] I.L.R. 50 Bom. 783.\n<\/p>\n
147<\/span><\/p>\n
sentence passed upon him, they were perfectly in order.
\nThe  decision  in  Emperor  v.\tInderchand(1)  extended\t the
\nprinciple  enunciated  in  Emperor v.  Jorabhai\t further  by
\napplying  it to a case where an application for revision  by
\nthe  accused  against his conviction and sentence  had\tbeen
\ndismissed  by the High Court.  In that case the accused\t had
\nfiled  an  application\tfor  revision  which  was  summarily
\ndismissed  by  the Vacation Judge on the 30th  April,  1954.
\nAfter\tsuch  summary  dismissal  of  the  application\t the
\nGovernment  filed  the\tcriminal  revision  application\t for
\nenhancement  of sentence.  The Division Bench held that\t the
\ncriminal  revision  application of the accused\thaving\tbeen
\nfully disposed of by the learned Vacation Judge there was  a
\nvalid  order  of dismissal, that section  430  debarred\t the
\naccused from having that order of dismissal reviewed by\t the
\nHigh Court that the right conferred by section 439(6)  could
\nnot  give an accused person a right to be heard against\t his
\nconviction  if such a right was in conflict with  the  other
\nprovisions of the Code, that under section 369 the Court had
\nno power to alter the decision of the learned Vacation Judge
\ndismissing  the revision petition filed by the\taccused\t and
\nthat if the accused bad already unsuccessfully exercised his
\nright  of  appeal or revision to the High Court he  was\t not
\nentitled  in a subsequent application by the Government\t for
\nenhancement  of\t sentence to ask the High Court to  go\tonce
\nmore  into  the\t merits of the case and\t to  set  aside\t the
\nconviction  which  the same Court had  previously  confirmed
\neither in appeal or on a revision application.\tDivatia,  J.
\nwas  conscious of the somewhat anomalous position so far  as
\nthe  accused was concerned and referred to the\tobservations
\nof the Court in Emperor v. Babu Pandurang Mhaske(3) where it
\nwas  stated  and rightly that where the\t High  Court  itself
\nwanted\tto enhance the sentence, in order that\tthe  accused
\nmight have the right to challenge his conviction before\t the
\nsame bench which was hearing either the appeal or the
\n(1)  [1934] 36 Bom.  L.R. 954.\n<\/p>\n
(2)  (1926] I.L.R. 50 Bom. 783.\n<\/p>\n
(3)  [1934] 36 Bom.  L.R 382.\n<\/p>\n
148<\/span><\/p>\n
application   for  enhancement,\t it  was  proper  that\t the
\napplication  for  enhancement  should be  heard\t before\t the
\nappeal\twas  finally decided, so that the accused  might  be
\nheard at the very time when the question of enhancement\t was
\nbefore the Court.  While approving of these observations the
\nlearned Judge however observed that it was possible only  in
\na  case\t where the High Court itself wanted to\tenhance\t the
\nsentence and gave notice to the accused and not so in a case
\nwhere  Government  approached  the High Court by  way  of  a
\nrevisional  application\t as  it was  entitled  to  do  under
\nsection 439(1).\t Government might approach the High Court in
\nrevision under section 439(1) at any time within six  months
\nafter  the decision of the lower Court and in the  meanwhile
\nthe  accused  might  have come to the  High  Court  and\t his
\napplication might have been rejected.  That might result  in
\nthis that the conviction might be confirmed by one Bench  or
\na single Judge as might happen in a particular case and\t the
\napplication for enhancement might be heard by another Bench.
\nBut, so far as the provisions of the section were concerned,
\nwhatever might be the anomaly in this procedure, the learned
\nJudge  did not think that the inconvenience or\thardship  to
\nthe accused should lead the Court to construe section 439 of
\nthe Criminal Procedure Code in a manner which, according  to
\nthe  view  of  the learned Judge, was not  intended  by\t the
\nLegislature.  These observations however did not take  count
\nof  the\t fact  that if a petition of appeal  or\t a  criminal
\nrevision  application  filed by the  accused  was  dismissed
\nsummarily  or in limine there was no question of a  judgment
\nof the High Court replacing that of the lower Court and\t the
\norder  of the High Court merely amounted to a refusal by  it
\nto  interfere  either in the exercise of  its  appellate  or
\nrevisional  jurisdiction  which order though final  and\t not
\nbeing  susceptible of review or revision by the\t High  Court
\nitself,\t did  not  amount to a judgment of  the\t High  Court
\nbarring\t the application of section 439(1) of  the  Criminal
\nProcedure  Code.   In that event the judgment of  the  lower
\nCourt not being replaced by a
\n149<\/span>
\njudgment of the High Court it could be the subjectmatter  of
\ncriminal  revision at the instance of the Government in\t the
\nmatter\tof  the\t enhancement of the  sentence  and  all\t the
\nprovisions  of section 439 would then come  into  operation.
\nThe  High Court would be bound then under section 439(2)  to
\ngive  an  opportunity  to the accused to  be  heard  in\t his
\ndefence\t before\t the sentence passed upon him by  the  lower
\nCourt  was  enhanced  and the accused  would  under  section
\n439(6)\tbe entitled in showing cause against the  notice  of
\nenhancement also to show cause against his conviction.\tThis
\ndecision  of the High Court therefore was incorrect and\t the
\naccused\t ought to have been allowed in spite of the  summary
\ndismissal  of  his  application in revision  to\t show  cause
\nagainst\t his  conviction  while showing\t cause\tagainst\t the
\nnotice for enhancement.\n<\/p>\n
One  more decision of the Bombay High Court may be  referred
\nto  and\t that is Emperor v.  Nandlal  Chunilal\tBodiwala(1).
\nThat was a case where the Sessions Judge of Ahmedabad had at
\nthe instance of the petitioner made a reference to the\tHigh
\nCourt  recommending  that the Additional Magistrate  had  no
\njurisdiction,\tpower  or  authority  to  pass\t the   order
\ncomplained against and that the High Court should quash\t the
\nsame.\tOn  the reference coming before the High  Court\t the
\nfollowing order was passed without issuing notice:-“no order
\non  this  reference”.\tThe  petitioner\t thereupon  filed  a
\ncriminal revision application to the High Court praying that
\nthe order of the Additional District Magistrate be  quashed.
\nThis revision application came for hearing before a Division
\nBench\tand  the  Court\t requested  the\t Chief\tJustice\t  to
\nconstitute a Full Bench to consider the following point:
\n“When  on  a  reference made by\t the  Sessions\tJudge  under
\nsection 438 of the Criminal Procedure Code, a Division Bench
\nof this Court passes an order without issuing notice,  viz.,
\n‘No order on this reference’, whether the applicant at whose
\ninstance  the Sessions Judge made the reference is  entitled
\nto make an application in revision to this Court in the same
\n(1)  [1945] 48 Bom. L.R. 41(F.B.).\n<\/p>\n
150<\/span><\/p>\n
matter,\t in  view of the provisions of section\t369  of\t the
\nCriminal Procedure Code?”\n<\/p>\n
The  application  was  heard  by a Full\t Bench\tand  it\t was
\ncontended  on  behalf of the petitioner that when  the\tHigh
\nCourt  without issuing notice to the applicant\tdisposed  of
\nthe  reference\tmade by the Sessions Judge  by\tstating\t “no
\norder  on the reference” there was no judgment given on\t the
\nmerits.\t  The order of the Court only meant that  the  Court
\nwould  not allow the matter to be brought before it  on\t the
\nrecommendation of the Sessions Judge and merely disposed  of
\nit on that view.  If a mere order of disposal of a reference
\nor revision application amounted to a judgment the party  in
\nwhose  favour  a reference was made by\tthe  Sessions  Judge
\nwould  be  deprived of the right he had of  approaching\t the
\nHigh  Court  in\t revision against the order,  if  the  Court
\ndisposed  of  the matter in the manner it had done  in\tthat
\ncase.This  argument was repelled by the Full Bench.  It
\nheld that section   369\t of  the  Criminal  Procedure\tCode
\ndebarred  the petitioner from making the  criminal  revision
\napplication,  that the order of the High Court\tpassed\tupon
\nthe  reference amounted to a judgment within the meaning  of
\nthat term in section 369 of the Criminal Procedure Code\t and
\nafter it was signed it could not be altered or reviewed in a
\nsubsequent application for revision and that even though the
\nDivision Bench of the High Court passed the order “no  order
\non this reference” without issuing notice to the  applicant,
\nthe  applicant\t whose\tfavour the  Sessions  Judge  made  a
\nreference  was\tnot  entitled  to  make\t an  application  in
\nrevision to the High Court in the same matter.\tEven  though
\nthis conclusion was reached by the Full Bench they  observed
\nthat  they  were  not  unaware\tthat  the  applicant  had  a
\ngrievance  that\t his  position had  been  worsened  and\t not
\nimproved by the Sessions Judge being in his favour,  because
\nif the recommendation of the Sessions Judge was turned\tdown
\nwithout hearing the petitioner, as had happened in that case
\nhe  was\t worse off, while if the Sessions Judge\t would\thave
\nbeen  against  him he could have still applied to  the\tHigh
\nCourt in revision
\n151<\/span>
\nand  got  an  opportunity to put his case  before  the\tHigh
\nCourt.\t This was recognised no doubt as an anomaly  but  it
\nwas caused by the provision of rule 26 of the Appellate Side
\nRules  of the Bombay High Court which compelled a  party  to
\napply  to  a  lower  revisional\t Court\tbefore\tapplying  in
\nrevision  to  the  High Court.\tThis  disability  which\t the
\npetitioner  suffered  from  was emphasised in  that  if\t the
\nSessions  Judge had dismissed his application he could\tthen
\nhave  applied to and argued his case before the High  Court,
\nbut  because  the Sessions Judge was in his favour  and\t had
\ntherefore  got\tto  make  a  reference\tto  the\t High  Court
\nrecommending it to set aside the order and because the\tHigh
\nCourt\twas   not  satisfied  with  the\t reasons   for\t the
\nrecommendation,\t and disposed of it without issuing a  rule,
\nthe petitioner was debarred from urging his arguments before
\nthe  High Court.  It might be that the reasons given by\t the
\nSessions Judge for the recommendation might be weak or might
\nbe  insufficient,  whereas the petitioner,  if\the  appeared
\nmight  be  able to urge cogent and  sufficient\treasons\t for
\nsetting aside the original order.  In spite of pointing\t out
\nthis  disability the only recommendation which was  made  by
\nthe  Full Bench was that the Rule 26 of the  Appellate\tSide
\nRules  should be properly amended so as to issue  notice  to
\nall  the  parties concerned when a reference was made  by  a
\nSessions Judge recommending the setting aside of an order of
\nthe Trial Court.  We are of the opinion that the Full  Bench
\nshould\t not  have  stopped  short  at\tpointing  out\tthis
\ndisability which the applicant suffered from but should have
\ngone  further  and held that the order passed  by  the\tHigh
\nCourt  on the reference, though final under section  430  of
\nthe  Criminal Procedure Code was not a judgment\t within\t the
\nmeaning\t of  that  term\t and therefore\tdid  not  debar\t the
\napplicant  from\t making the  criminal  revision\t application
\nwhich he did under section 439(1) of the Criminal  Procedure
\nCode.  Such an order did not amount to a judgment within the
\ndefinition thereof given by the Full Bench itself which was:
\n“a  judgment is the expression of the opinion of  the  Court
\narrived at after due consideration of the
\n152<\/span>
\nevidence and of the arguments” as pointed out earlier in the
\ncourse\tof this judgment.  We are of the opinion  that\tthis
\ndecision of the Bombay High Court was also incorrect.
\nEmperor\t v.  Jorabhai (1) was followed by  the\tLahore\tHigh
\nCourt  in Emperor v. Dhanalal(2).  In that case\t a  revision
\npetition  filed\t on  a behalf of the  convicted\t person\t was
\ndismissed  after hearing counsel.  Subsequently a report  of
\nthe  Sessions Judge was received and the learned  Judge\t who
\nhad  dismissed\tthe revision petition issued  a\t notice\t for
\nenhancement  of\t sentence and the Court\t held  that  section
\n439(6) was meant to give an accused person to whom a  notice
\nfor enhancement was issued and who had not appealed or if no
\nappeal lay had not applied for revision of his conviction an
\nopportunity to question the correctness of his conviction if
\nit was proposed to enhance his sentence.  But if a  petition
\nfor  revision against his conviction by a convict  had\tbeen
\nrejected  by  a\t Judge of the High Court and  a\t notice\t had
\nsubsequently  been  issued  to him to  show  cause  why\t his
\nsentence should not be enhanced the convict was barred\tfrom
\nshowing\t cause against his conviction and the fact that\t the
\nprevious  order dismissing the revision was  passed  without
\nissuing\t notice to the opposite party made no difference  to
\nthe  position.\tThe Court also invoked the principle of\t the
\nfinality  of  judgments\t and further  held  that  the  words
\n“unless he had already done so” though not occurring at\t the
\nend  of\t the sub-section were to be presumed to\t be  implied
\nfrom  the ordinary presumption as to the finality of  orders
\nin  criminal  revision\tproceedings.  In  arriving  at\tthis
\nconclusion Addison, J. observed:-\n<\/p>\n
“In  the  present case there has been a\t judgment  -of\tthis
\nCourt  on the very full revision application brought by\t the
\nconvict.   By that judgment the petition was  dismissed\t and
\nthe  conviction\t confirmed.   Under  section  369,  Criminal
\nProcedure  Code that judgment cannot be reviewed.  It  is  a
\nfinal  judgment\t of  this  Court,  and\tin  my\topinion\t the
\nprovisions of sub-\n<\/p>\n
(1)  [1926] I.L.R. 50 Bom. 783.\n<\/p>\n
(2)  [1928] I.L.R. 10 Lah. 241.\n<\/p>\n
153<\/span><\/p>\n
section\t (6), section 439, do not give the  convict  another
\nopportunity  in these circumstances to be heard\t as  regards
\nhis conviction”.\n<\/p>\n
There was no justification whatsoever for reading the  words
\n“unless\t he  had  already done so” in the  section  and\t the
\nreasoning  adopted  by\tthe learned  Judge  in\tour  opinion
\nwrongly\t invested the order passed by the High Court in\t the
\nexercise  of  its  revisional  jurisdiction  dismissing\t the
\napplication  without issuing a notice to the opposite  party
\nwith the character of a judgment which could only be enjoyed
\nby it if it had been pronounced after a full hearing in\t the
\npresence  of  both the parties after notice  issued  to\t the
\nopposite  party.  Then the pronouncement of the\t High  Court
\nwould  have  been a judgment replacing the judgment  of\t the
\nlower  Court  and  not\tsubject\t to  the  exercise  of\t any
\nrevisional jurisdiction under section 439(1) of the Criminal
\nProcedure Code.\t Where the petition for revision against his
\nconviction presented by the convict had been rejected by the
\nHigh Court in limine the order passed by the High Court\t did
\nnot  tantamount to a judgment which would debar the  convict
\nfrom showing cause against the conviction when showing cause
\nagainst\t a  subsequent notice for  enhancement\tof  sentence
\nissued by the High Court.\n<\/p>\n
The learned Judge further observed:\n<\/p>\n
“There\tappears\t to be no distinction between  dismissing  a
\nrevision  petition in limine or after notice.  The  judgment
\nis  in\teither case an effective and final judgment  of\t the
\nCourt.\t In  this respect there is no difference  between  a
\nrevision      petition\t   and\t   a\t  memorandum\t  of
\nappeal……………….. In these circumstances I can\t see
\nno  force  in  the  argument that  an,\torder  dismissing  a
\nrevision  petition without issuing notice is different\tfrom
\nan  order  after the issue of notice, or that there  is\t any
\ndistinction  between a judgment of this Court passed on\t the
\nrevision side and one on the appellate side”.
\nWhile  agreeing with the observations of the  learned  Judge
\nthat  for  the\tpurposes  of section  439(1)  there  was  no
\ndistinction between a judgment of
\n20<\/span>
\n154<\/span>
\nthe  High Court passed on the revision side and one  on\t the
\nappellate  side we are of the opinion that there is  a\treal
\ndistinction between orders dismissing a revision petition or
\na petition of appeal in limine without issuing notice to the
\nopposite party and judgments pronounced by the High Court in
\nthe  exercise  of its appellate or  revisional\tjurisdiction
\nafter  a  full hearing in the presence of both\tthe  parties
\nafter the issue of notice.  The latter are judgments in\t the
\ntrue  sense  of\t the  term  which  debar  the  exercise\t  of
\nrevisional jurisdiction by the High Court under section\t 439
\n(1) of the Criminal Procedure Code.\n<\/p>\n
This decision of the Lahore High Court was however overruled
\nby  a  Special\tBench  of that\tCourt  in  Emperor  v.\tAtta
\nMohammad(1).   A  criminal  revision  application  had\tbeen
\ndismissed in limine and thereafter a notice for\t enhancement
\nof  sentence was issued by the High Court.  The decision  of
\nthat  Court in Emperor v. Dhanalal(1) following\t Emperor  v.
\nJorabhai(3) was cited as debarring the accused from  showing
\ncause against his conviction and Blacker, J. before whom the
\nmatter\twas  argued  in the  first  instance  recommended  a
\nreference  to a larger Bench and the reference came  up\t for
\nhearing\t and  final disposal before a Special Bench  of\t the
\nCourt.\t It was held that the accused was entitled  to\tshow
\ncause  against his conviction notwithstanding the fact\tthat
\nhis  petition  for  revision of the order by  which  he\t was
\nconvicted had already been dismissed in limine under section
\n435 of the Criminal Procedure Code.  The question whether an
\norder  under  section 435 was a judgment  was  discussed  by
\nBlacker,  J. while pronouncing the judgment of\tthe  Special
\nBench.\t He  referred to the case of Dr. Hori Ram  Singh  v.
\nEmperor(1)  above referred to and quoted with  approval\t the
\nobservations of Sulaiman, J. that every order in a  criminal
\nmatter was not a judgment and that ‘judgment’ in the  Crimi-
\nnal  Procedure\tCode  meant  a\tjudgment  of  conviction  or
\nacquittal.   Applying  this  definition\t the  learned  Judge
\nobserved:-\n<\/p>\n
(1) [1943] I.L.R. 25 Lah. 391 (F.B.).  (2) [1928] I.L.R.  10
\nLahore 241.\n<\/p>\n
(3) [1926] I.L.R. 50 Bom. 783.\t(4) A.I.R. 1939 F.C. 43.\n<\/p>\n
155<\/span><\/p>\n
“It  will be seen that an order under section 435  can\twith
\ndifficulty  be called a judgment.  All that a Judge does  at
\nthis preliminary stage is either to send for the records  of
\nthe lower Court with a view to examining them under  section
\n439(1)\tor to refuse to do so.\tIt is difficult to  see\t how
\nthe latter can possibly be called a judgment of\t conviction.
\nWhen such an order consists of the one word ‘Dismissed’\t can
\nit necessarily be taken as a judicial pronouncement that  in
\nthe  opinion  of  the  Judge  the  respondent  was   rightly
\nconvicted- upon the evidence?  It seems to me that all\tthat
\nit means is that the Judge sees no adequate ground disclosed
\nin  the\t petition  or  on  the\tface  of  the  judgment\t for
\nproceeding further”.\n<\/p>\n
This  reasoning\t in our opinion was quite  sound.   But\t the
\nlearned\t Judge\tproceeded  further  to\tmake  a\t distinction
\nbetween the summary dismissal of a petition of appeal  under
\nsection 421 and the summary dismissal of a criminal revision
\napplication  under section 435 stating that the reasons\t for
\nwhich the High Court would summarily dismiss an appeal\twere
\nvery  different\t from  those for which it  would  refuse  to
\ninterfere  in revision, and in the case of appeal  it  would
\nonly  do  so when the material before it was  sufficient  to
\nsatisfy it beyond any doubt of the accused’s guilt, whereas,
\non  revision  the  High Court  would  not  interfere  merely
\nbecause\t it  did  not agree on every point  with  the  Court
\nbelow,,\t as  long  as  the  Courts  below  have\t come  to  a
\nreasonable  decision on the evidence.  This  distinction  in
\nour  opinion  does not affect the position  that  the  order
\npronounced  by\tthe High Court dismissing  the\tpetition  of
\nappeal or a criminal revision application in limine  without
\nissuing\t notice\t to the opposite party is  merely  an  order
\ndismissing  the\t same on the ground that there is  no  prima
\nfacie  case for interference of the High Court and does\t not
\namount to a judgment pronounced by the High Court after full
\nhearing\t in the presence of both the parties which only\t can
\ndebar\tthe  High  Court  from\texercising  its\t  revisional
\njurisdiction  under section 439(1).  Mr. Justice Mahajan  as
\nhe then was delivered a concurring judgment but went a\tstep
\nfurther and observed that
\n156<\/span>
\nthe  true interpretation of section 439(6) was that it\tgave
\nan  unlimited  right  to the accused to\t whom  a  notice  of
\nenhancement  was issued under section 439(2) to\t show  cause
\nagainst\t his conviction and the Judge was bound to  go\tinto
\nthe  evidence  with a view to find for himself\twhether\t the
\nconviction  could be sustained.\t This right accrued  to\t the
\nconvict on service of notice of enhancement of sentence\t and
\ncould  not  be negatived by anything that had  preceded\t the
\nissue  of  that notice.\t It was the Judge  hearing  the\t en-
\nhancement  petition  who-had to give an opportunity  to\t the
\nconvict\t to  challenge\this conviction\tbefore\thim  and  to
\nsatisfy\t him  that the conviction was  unsustainable.\tThat
\nJudge\tcould  not  substitute\tfor  his  satisfaction\t the
\nsatisfaction  of some other Judge in the matter.  It  was  a
\ncondition  precedent to the passing of a  prejudicial  order
\nagainst an accused person that he had another opportunity of
\nestablishing  his innocence, even if he had failed to do  so
\nbefore.\t  The learned Judge rightly observed that  an  order
\nmade  in  the  exercise of  an\textraordinary  discretionary
\njurisdiction,  unless it be a judgment in rem, could not  in
\nany way operate as a bar to the decision of the same  matter
\nwhen  it  arose\t in  the  exercise  of\tordinary   appellate
\njurisdiction,  and  that  therefore an\torder  dismissing  a
\ncriminal revision application in limine could not amount  to
\na  judgment  of\t the High Court.   The\tlearned\t Judge\tthen
\ninvoked\t the  principle\t of the finality  of  judgments\t and
\nobserved:-\n<\/p>\n
“On  the other band if the view be correct that\t all  orders
\npassed\tin exercise of revisional jurisdiction whether\tthey
\nbe of dismissal of the petition in limine, or otherwise take
\naway the right of the convict to challenge his conviction in
\nview  of  section 369, Criminal Procedure Code\tas  in\tsuch
\ncases  a  decision  given  already  cannot  be\taltered\t  or
\nreviewed, then I do not see how for purposes of\t enhancement
\nof the sentence, the previous decision can be altered.\t Any
\nJudge deciding a petition for revision under section  439(1)
\nmust  consider the propriety of the sentence as well as\t the
\npropriety and legality of the conviction, and in my  opinion
\nhe must be presumed to
\n157<\/span>
\nhave  done  so.\t If a previous decision on the\tquestion  of
\nconviction bars the applicability of section 439(6), it also
\nbars  the power to enhance the sentence.  Once it  has\tbeen
\nheld that the sentence was proper, it cannot be enhanced.  I
\nhave  not  been\t able  to see the  ratio  decidendi  of\t the
\ndecisions  which  take\tthe  view,  that  the  question\t  of
\nenhancement  of\t the  sentence\tis  something  distinct\t and
\nseparate  from that of conviction, and that the question  of
\nthe  adequacy and propriety of sentence which  comes  before
\nthe  court  on\ta petition for\trevision  presented  by\t the
\naccused\t  is   a  matter  different  from  the\t matter\t  of
\nenhancement., The Judge has to see if a proper sentence\t has
\nbeen  passed  before he decides the case, and  the  question
\nwhether\t a sentence passed is adequate or inadequate  cannot
\nbe split up in two different compartments.  The question  is
\nonly  one of the quantum of punishment and such\t a  question
\ncan  only be decided but once.\tTherefore in my view  either
\nthere is no power of re-revision in the High Court, in\tthat
\ncase there is no power to enhance the sentence on a separate
\npetition  made for the purpose; or there is such a power  in
\nthat  case  it is available to the Crown as well as  to\t the
\naccused”.\n<\/p>\n
This  reasoning again was in our opinion sound but led\tonly
\nto the conclusion that there was no power of re-revision  in
\nthe  High,  Court  and in that case there was  no  power  to
\nenhance\t the  sentence on a separate petition made  for\t the
\npurpose.   The\tlearned Judge therefore ought to  have\theld
\nthat if the order dismissing the criminal revision  petition
\nin  limine tantamount to a judgment pronounced by  the\tHigh
\nCourt  it was not open to the High Court to issue  a  notice
\nfor  enhancement  of  sentence\tsubsequently  under  section
\n439(1) of the Criminal Procedure Code.\t‘Having held however
\nthat the order dismissing the criminal revision\t application
\nin limine was merely an order and not a judgment  pronounced
\nby  the High Court and also having held that the High  Court
\nwas  entitled to issue a notice for enhancement of  sentence
\nunder  section\t439(1), under those circumstances  the\tonly
\nlogical conclusion to which the Court could come
\n158<\/span>
\nwas  that  under section 439 (6) the accused  while  showing
\ncause against the enhancement of sentence was entitled\talso
\nto  show cause against his conviction.\tMr. Justice  Mahajan
\nconfined  his decision only to the case of a dismissal of  a
\ncriminal  revision application in limine and left  open\t the
\nquestion  whether  a decision on the Appellate Side  of\t the
\nHigh Court would bar the exercise of the right under section
\n439  (6) inasmuch as no arguments were heard on\t the  point.
\nThe  principle of this judgment in our opinion is  not\tcon-
\nfined merely to cases where a criminal revision\t application
\nhas been dismissed in limine but also extends to cases where
\na  petition  of\t appeal\t whether  presented  from  jail\t  or
\npresented  to the Court by the appellant or his pleader\t has
\nbeen  similarly\t dismissed summarily or\t in  limine  without
\nissuing\t notice to the opposite party and also to  cases  of
\nreferences made by the lower Courts to the High Court  where
\nthe  High Court has merely passed an order  without  issuing
\nnotices,  to any of the parties concerned-“no order on\tthis
\nreference”.\n<\/p>\n
The  Patna  High Court in Ramlakhan Chaudhry  v.  The  King-
\nEmperor(1)   followed  both  these  decisions\tEmperor\t  v.
\nJorabhai(2) and Empeeror v. Dhanalal(3) in holding that\t the
\ndismissal  of an appeal by the High Court did not  debar  it
\nfrom subsequently enhancing the sentence in the exercise  of
\nrevisional jurisdiction after issuing notice to the accused.
\nIn  that  case\tan appeal had.\tbeen  dismissed\t after\tfull
\nhearing\t by  the High Court.  At the hearing of\t the  appeal
\nhowever the Court asked the counsel for the accused to\tshow
\ncause  why  the\t sentence passed upon  them  should  not  be
\ndirected  to  run  consecutively thus in  effect  issuing  a
\nnotice\tfor  enhancement of the sentence.  When\t the  matter
\ncame  on  for  hearing it was contended\t on  behalf  of\t the
\naccused\t that with the disposal of the appeal the Bench\t and
\nindeed\tthe  High  Court  was functus  officio\tand  had  no
\njurisdiction to hear the matter at all.\t This contention was
\nrepelled  by observing that the appellate judgment  was\t not
\nconcerned with the
\n(1)  [1931] I.L.R 10 Patna 872.\n<\/p>\n
(2)  [1926] I.L.R. 50 Bom. 783.\n<\/p>\n
(3)  [1928] I.L.R. 10 Lahore 241.\n<\/p>\n
159<\/span><\/p>\n
question of enhancement of the sentence which only arose  in
\nthe exercise of the revisional jurisdiction and the sentence
\nto  be revised and enhanced was the sentence passed  not  by
\nthe  High  Court  but  by  the\tCourt  of  Sessions.   These
\nobservations run counter to the observations of Mr.  Justice
\nMahajan which we have quoted above and ignores the fact that
\nonce  the High Court pronounced its judgment in\t the  appeal
\nafter  full hearing in the presence of both the parties\t the
\njudgment of the High Court replaced that of the lower  Court
\nand the High Court had thereafter no power to issue a notice
\nof  enhancement\t of  sentence  purporting  to  exercise\t the
\nrevisional powers vested in it under section 439 (1) of\t the
\nCriminal  Procedure Code which could be exercised  only\t qua
\nthe judgments of the lower Courts and not its own judgments.
\nThe  Allahabad\tHigh  Court also  in  Emperor  v.  Naubat(1)
\nfollowed  the decisions of that Court which had approved  of
\nand  followed  Emperor\tv.  Jorabhai(2)\t and  -repelled\t the
\ncontention  which  had been urged on behalf of\tthe  accused
\nthat the application in revision filed by the Government for
\nenhancement of their sentence was incompetent, because their
\nappeal\tfrom  their convictions had been  dismissed  by\t the
\nCourt  and  it\twas not open to them  again  to\t show  cause
\nagainst their convictions.  The decisions above referred  to
\nwere  held by the Court to be an authority for the  proposi-
\ntion that the Court could under the circumstances proceed to
\nconsider  whether  the\tsentence imposed  upon\tthe  accused
\nshould\tbe  enhanced,  even though it was not  open  to\t the
\naccused\t to  show  cause  against  their  conviction.\tThis
\ndecision  was  in  our opinion not correct  for\t the  simple
\nreason\tthat  once  the\t judgment  of  the  Appellate  Court
\nreplaced that of the lower Court it was not competent to the
\nHigh Court to issue a notice for enhancement of sentence  in
\nthe  exercise of its revisional jurisdiction  under  section
\n439(1) and no question could therefore arise of the  accused
\nbeing  called upon to show cause why their  sentence  should
\nnot be enhanced.\n<\/p>\n
(1)  I.L.R. 1945 Allahabad, 527.\n<\/p>\n
(2)  [1926] I.L.R. 50 Bom. 783.\n<\/p>\n
160<\/span><\/p>\n
The  High  Court  of  Rajasthan in  The\t Stafe,\t v.  Bhawani
\nShankar(1)  tried  to reconcile the various points  of\tview
\nabove  noted by laying stress on the aspect of\tthe  accused
\nhaving\thad  an\t opportunity  to  show\tcause  against\t his
\nconviction and it observed that where an accused person\t had
\nalready\t been  beard and thus given an opportunity  to\tshow
\ncause against his conviction, whether it be in appeal or  in
\nrevision  and  whether the dismissal was summary or  on\t the
\nmerits,\t he  could  not be heard against  his  conviction  a
\nsecond\ttime  under  section  439(6)  as  the  principle  of
\nfinality of orders in criminal proceedings would apply.\t But
\nif  the\t accused  had not been heard at\t all  and  given  no
\nopportunity  to\t show cause against his conviction  and\t his
\njail  appeal  had been dismissed under section\t421  of\t the
\nCriminal Procedure Code, or his revision had been  dismissed
\nwithout\t hearing, he was entitled to ask the Court  to\thear
\nhim and thus allow him to show cause against his  conviction
\nunder section 439(6), if a notice of enhancement was  issued
\nto  him.   The real question however in our opinion  is\t not
\nwhether an opportunity has been given to the accused to show
\ncause  against\this conviction at any time but\twhether\t the
\nHigh  Court  is entitled to exercise its  revisional  powers
\nunder  section 439(1) and issue a notice of  enhancement  of
\nsentence   upon\t the  accused.\t If  the  accused   had\t  an
\nopportunity  of showing cause against his conviction  either
\nin an appeal or a criminal revision application filed by him
\nor on his behalf and the conviction was confirmed on a\tfull
\nhearing in the presence of both the parties after the  issue
\nof the reqiuisite notice by the Court to the opposite  party
\nthe  judgment  of the High Court would replace that  of\t the
\nlower Court which judgment could not be reviewed or  revised
\nby  the\t High  Court at all in exercise\t of  its  revisional
\npowers under section 439(1).  If however an order dismissing
\nthe  petition of appeal or criminal revision application  or
\neven a reference made by the lower Court was made dismissing
\nthe  same summarily or in limine without issuing  notice  to
\nthe opposite party or the parties concerned it would tanta-
\n(1)  I.L.R. [1952] 2 Rajasthan 716.\n<\/p>\n
161<\/span><\/p>\n
mount  to  the\tHigh Court not\tentertaining  any  of  these
\nproceedings on the ground that no prima facie case had\tbeen
\nmade out for the interference of the Court.  If such a prima
\nfacie case had been made out the High Court would admit\t the
\nappeal\t or  the  revision  application\t or  entertain\t the
\nreference and hear the matter fully in the presence of\tboth
\nthe parties, ultimately pronouncing its judgment which would
\ntake  the  place of the judgment of the\t lower\tCourt  which
\nwould certainly not be subject to the exercise of revisional
\njurisdiction under section 439 (1) of the Criminal Procedure
\nCode.  We are of the opinion that the conclusion reached  by
\nthe  High Court of Rajasthan was correct and the accused  in
\nthat  case was rightly allowed by it to show  cause  against
\nhis conviction in spite of his petition of appeal from\tjail
\nhaving been dismissed by it summarily, though we differ from
\nthe  reasoning\tadopted by the Court in reaching  that\tcon-
\nclusion.   Section 439(6) gives the accused a right to\tshow
\ncause  against his conviction.\tIt does not merely give\t him
\nan  opportunity\t to  show  cause  against  the\tsame.\t The
\nopportunity  is\t given\tto him to  show\t cause\tagainst\t the
\nenhancement of sentence under section 439(2) of the Criminal
\nProcedure  Code and once be has got that opportunity,  while
\nshowing cause against the enhancement of his sentence he has
\na right to show cause against his conviction which right  he
\ncan  ,exercise\twhether\t he had on an  earlier\toccasion  an
\nopportunity of doing so or not; The real test is not whether
\nthe accused has had an opportunity of showing ’cause against
\nhis  conviction\t but whether a judgment of  the\t High  Court
\npronounced after a full hearing in the presence of both\t the
\nparties after notice issued in that behalf has replaced\t the
\njudgment  of the lower Court.  If the judgment of the  lower
\nCourt  is  so replaced there is no occasion at all  for\t the
\nexercise  of the revisional powers under section  439(1)  of
\nthe  Criminal Procedure Code.  If however no  such  judgment
\nhas replaced that of the lower Court the High Court has\t got
\nthe power to issue a notice for enhancement of the  sentence
\nand the accused has, in
\n21<\/span>
\n162<\/span>
\nspite  of whatever has happened in the past,  while  showing
\ncause  against the notice of enhancement also the  right  to
\nshow cause against his conviction.\n<\/p>\n
The  right  which is thus conferred upon the  accused  under
\nsection 439(6) cannot be taken away by having resort to\t the
\nprinciple  of finality of judgments incorporated in  section
\n369  of\t the Criminal Procedure Code.  As we  have  observed
\nabove  that  principle\tcomes into  operation  when  once  a
\njudgment  of the High Court has replaced that of  the  lower
\nCourt and in those cases the High Court would not be  compe-
\ntent  to review or revise its own judgment.  The High  Court
\nwould  also  not be then entitled to issue  any\t notice\t for
\nenhancement  of sentence in the exercise of  its  revisional
\npowers under section 439 (1) of the Criminal Procedure Code.
\nWhere however the High Court -in exercise of its  revisional
\npower  over the judgments of the lower Courts under  section
\n439(1) issues a notice for enhancement of sentence and gives
\nan  opportunity\t to  the  accused  of  being  heard   either
\npersonally  or by pleader in his own defence  under  section
\n439(2)\tthe  right which is given by section 439(6)  to\t him
\nalso to show cause against his conviction comes into  exist-
\nence  and this right of his cannot be’ negatived  by  having
\nresort\tto the provisions of either section 369\t or  section
\n430  of the Criminal Procedure Code.  Section 369  in  terms
\nprovides,  “save  as otherwise provided in  this  Code”\t and
\nsection\t 439(6)\t would be an otherwise\tprovision  which  is
\nsaved by this non-obstante clause appearing in section\t369.
\nIt  is significant to note that both these  amendments,\t the
\none in section 369 and the other in section 439 were enacted
\nby section 119 of Act XVIII of 1923 and the very purpose  of
\nthese\tsimultaneous  amendments  would\t appear\t to  be\t  to
\neffectuate  the\t right given to the accused  to\t show  cause
\nagainst\t his conviction as enacted in section 439(6) of\t the
\nCriminal Procedure Code.\n<\/p>\n
It may also be noted that the right which is thus  conferred
\non the accused under section 439(6) is not ,an unlimited  or
\nunfettered  right  as  observed by Mr.\tJustice\t Mahajan  in
\nEmperor v. Atta Mohammad(1).\n<\/p>\n
(1)  [1943] I.L R. 25 Lah. 391 (F.B.).\n<\/p>\n
163<\/span><\/p>\n
In  the case of trials by jury where an accused\t person\t has
\nbeen  convicted on the verdict of a jury and is called\tupon
\nunder section 439(2) of the Criminal Procedure Code to\tshow
\ncause why his sentence should not be enhanced he is entitled
\nunder  section 439(6) to show cause against his\t conviction,
\nbut only so far as section 423(2) of the Code allows and has
\nnot  an unlimited right of impugning the conviction  on\t the
\nevidence.   It has been held by the Allahabad High Court  in
\nEmperor\t v.  Bhishwanath  (1) that the\tcombined  effect  of
\nsections  439 (6) and 423 (2) is to entitle the\t accused  to
\nquestion  the  conviction  by showing only  that  the  Judge
\nmisdirected the jury or that the jury misunderstood the\t law
\nlaid down by the Judge in his charge.\n<\/p>\n
A  similar  conclusion was reached by the  majority  of\t the
\nJudges\tin  The\t Superintendent and  Remembrancer  of  Legal
\nAffairs, Bengal v. Jnanendra Nath Ghose & Another(1),  where
\nit was held that a person who had been convicted on his\t own
\nplea  of  “guilty”  under section  271(2)  of  the  Criminal
\nProcedure  Code,  in  showing cause  against  a\t notice\t for
\nenhancement  of\t sentence, could only  while  showing  cause
\nagainst\t his conviction attack the propriety or legality  of
\nsentence  but could not withdraw the plea of ‘guilty’ or  go
\nbehind such a plea as a confession of the facts charged.
\nThere  are no doubt two other judgments, one of\t the  Bombay
\nHigh Court in Emperor v. Ramchandra Shankarshet Uravane\t (3)
\nand  the  other\t of the Rangoon High Court in  Nga  Ywa\t and
\nanother v. King-Emperor which appear to run- counter to\t the
\nratio decidendi of these decisions of the Allahabad and\t the
\nCalcutta High Courts respectively but we are not called upon
\nto  resolve that conflict, if any.  Suffice it so  say\tthat
\nthe right which is conferred on the accused of showing cause
\nagainst his conviction under section 439(6) of the  Criminal
\nProcedure  Code is a right which accrues to him on a  notice
\nfor enhancement of sentence being served upon him and he  is
\nentitled  to  exercise\tthe same irrespective  of  what\t has
\nhappened in the past unless and until there is a judgment of
\nthe
\n(1)  I.L.R. 1937 Allahabad 308.\n<\/p>\n
(2)  33 Calcutta W.N. 599.\n<\/p>\n
(3)  [1932] 35 Bom.  L.R. 174.\n<\/p>\n
(4)  [1934] I.L.R. 12 Rangoon 616.\n<\/p>\n
164<\/span><\/p>\n
High Court already pronounced against his conviction after a
\nfull  hearing in the presence of both the parties on  notice
\nbeing  issued by the High Court in that behalf.\t This  right
\nof his is not curtailed by anything contained in the earlier
\nprovisions  of\tsection\t 439 nor by  anything  contained  in
\neither section 369 or section 430 of the Criminal  Procedure
\nCode.\n<\/p>\n
We are therefore of the opinion that the decision reached by
\nthe High Court of Bombay in the case under appeal was  wrong
\nand  must be reversed.\tWe accordingly allow the appeal\t and
\nremand\tthe matter back to the High Court of  Judicature  at
\nBombay with a direction that it shall allow the Appellant to
\nshow  cause against his conviction and dispose of  the\tsame
\naccording to law.\n<\/p>\n
BY  THE\t COURT.-The appeal is allowed and the order  of\t the
\nHigh  Court of Bombay is set aside, and the matter  is\tsent
\nback to the High Court with a direction that it shall  allow
\nthe  appellant\tan opportunity to show\tcause’\tagainst\t his
\nconviction and dispose of the matter according to law.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India U.J.S. Chopra vs State Of Bombay on 25 March, 1955 Equivalent citations: 1955 AIR 633, 1955 SCR (2) 94 Author: S R Das Bench: Das, Sudhi Ranjan 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-232303","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nU.J.S. 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