Sarjug Rai & Ors Vs. The State of
Bihar  INSC 90 (28 October 1957)
SINHA, BHUVNESHWAR P.
CITATION: 1958 AIR 127 1958 SCR 768
Criminal Revision-Enhancement of
sentence-Power of High Court-Enhancement beyond the maximum sentence imposable
by trial Court-Code of Criminal Procedure (V of 1898), ss. 31 and 439.
The appellants were tried before an Assistant
Sessions judge for the offence of dacoity under s. 395 Indian Penal Code.
Under 3. 31(3) Code of Criminal Procedure,
(as it then stood) the Assistant Sessions judge could award a maximum sentence
of seven years rigorous imprisonment. He convicted the appellants and sentenced
them to five years rigorous imprisonment each. The appellants appealed to the
High Court, and the High Court, in its revisional jurisdiction, issued a notice
to the appellants for enhancement of sentence. The High Court dismissed the
appeal and enhanced the sentence to ten years rigorous imprisonment.
Held, that the High Court had, in its
revisional jurisdiction under S. 439 Code of Criminal Procedure, the power to
enhance the sentence beyond the limit of the maximum sentence that could have
been imposed by the trial Court.
Bed Raj v. The State of Uttar Pradesh, (1955)
2 S.C.R. 583, referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 165 of 1957.
Appeal by special leave from the judgment and
order dated the 4th August, 1955, of the Patna High Court in Criminal Appeal
No. 699 of 1953 with Criminal Revision No. 205 of 1954, arising out of the
judgment and order dated the 12th December, 1953, 769 of the Court of the
Assistant Sessions Judge, Second Court Chapra in Trial No. 70 of 1953.
G. C. Mathur., for the appellants.
S. P. Varma, for the respondent.
1957. October 28. The following judgment of
the Court was delivered by SINHA J.- The only question for determination in
this appeal is whether the High Court in its revisional jurisdiction, has the
power to enhance the sentence, as it has done in the instant case, beyond the
limit of the maximum sentence that could have been imposed by the trial court,
on the accused persons. The appellants, along with others, were placed on their
trial before the Assistant Sessions Judge of Chapra in the district of Saran, for
the offence of dacoity under s. 395, Indian Penal Code. They, along with two
others, were convicted under s. 395, Indian Penal Code, and sentenced to
rigorous imprisonment for 5 years, by the Assistant Sessions Judge, by his
Judgment and order dated December 12, 1953.
The other accused were acquitted. The
convicted persons preferred an appeal to the High Court at Patna. The High
Court, in its revisional jurisdiction, while admitting the appeal, called upon
the appellants to show cause why, in the event of their convictions being
maintained, their sentence should not be enhanced. The appeal and the rule for
enhancement of sentence were heard together by a Division Bench of that Court.
The High Court, by its judgment and order dated August 4, 1955, allowed the
appeal of two of the appellants and acquitted them but maintained the
conviction as against the remaining six appellants. On the question of
sentence, the High Court observed that the " offence of dacoity has
increased tremendously. It is a very heinous offence as innocent persons, while
sleeping in their houses, are attacked and their belongings are taken by
force." The High Court, therefore, was of the opinion that a sentence of
five years' rigorous imprisonment was "extremely inadequate". It,
therefore, enhanced the sentence to 10 years' rigorous imprisonment in each 770
and obtained special leave to appeal limited to the question of sentence only,
the question being whether the High Court had the jurisdiction to enhance the
sentence beyond the limits of the power of the trial court itself The
occurrence of dacoity which is the subject matter of the charge against the
appellants, along with others, took place on the night between July 1 and 2,
1952, in the house of Ranjit Bahadur, a minor. After midnight, 16 or 17
dacoits, fully armed with various deadly weapons, broke open the main entrance
door of the house with an axe. After going into the house, they broke open
boxes and tampered with the iron safe, and removed articles worth twenty
The inmates of the house were over-powered.
Some of them, slipping out of the house, raised a big fire which is the
customary form of alarm raised against the invading crowd of dacoits. On that
alarm, a number of people of the village turned up but had not the courage to
face the dacoits for fear of being shot. They contented themselves with using
brickbats against the dacoits who made good their escape with their booty. It
would, thus, appear that it was a serious occurrence involving the lives and fortunes
of the inmates of the house, and naturally, the High Court took a very serious
view of the offence.
In this Court, the learned counsel for the
appellants, who appeared amicus curiae, contended, in the first place, that the
High Court had exceeded its powers in enhancing the sentence from 5 to 10 years
inasmuch as the trial court itself could not have inflicted a sentence of
imprisonment for more that 7 years. Alternatively, he contended that the High
Court had not kept in view the dictum of this Court in the case of Bed Raj v.
The State of Uttar Pradesh (1), while enhancing the sentence against the
appellants before it. And lastly, it was contended that in any view of the
matter, in the circumstances of this case, the sentence of 10 years rigorous imprisonment
is too severe. In our opinion, there is no substance in any one of these
(1)  2 S.C.R. 583.
771 The main point on which the special leave
was granted is the question of the competence of the High: Court to impose a
higher sentence than that which could have been imposed by the learned
Assistant Sessions Judge under s. 31(3) of the Code of Criminal Procedure. The
learned trial judge could not have imposed a term of imprisonment exceeding 7
The argument is that the High Court could
enhance the sentence from 5 to 7 years and no more. This argument is sought to
be enforced by the consideration that it must be presumed that the learned
Assistant Sessions Judge had been entrusted with the trial of the accused
persons with the full knowledge that, on conviction, the accused persons could
be punished with a term of imprisonment not exceeding 7 years. In its
revisional jurisdiction, the High Court could exercise its powers only to
correct any mistakes made by the learned trial judge. The High Court could,
therefore, at the most, say that the trial judge should have inflicted the
highest punishment, it had been empowered by the Code, to impose. The High
Court could not, at the revisional stage, it was further argued, insist upon a higher
punishment being awarded by the trial court than 7 years' rigorous
The power of the High Court to enhance a
sentence, is contained in sub-s. (1) of s. 439 of the Code, which clothes the
High Court with the powers of a Court of Appeal under the Code, as also the
power to enhance the sentence. Sub-s.
(1) itself, does not contain any words of
limitation on the power to enhance the sentence. Hence, the High Court could
impose any sentence up to the maximum limit prescribed by the Indian Penal
Code, for a particular offence. In this case, therefore, the High Court could
impose the maximum sentence of imprisonment for life under s. 395, Indian Penal
Code. Is there anything in the Code of Criminal Procedure, which limits that
power ? The fact that the trial of the case was entrusted to a court with a
limited jurisdiction in the matter of sentence, could not be used to impose a
limit on the power of a High Court to impose a proper and 98 772 adequate
sentence. That the Legislature did not intend to impose a limit on the power of
the High Court to inflict an adequate sentence in a trial held by a Court of
Session, is made clear by the provisions of sub-s. (3) of s. 439, Criminal
Procedure Code, which is in these terms:
" (3) Where the sentence dealt with
under this section has been passed by a Magistrate acting otherwise than under
section 34, the Court shall not inflict a greater punishment for the offence,
which, in the opinion of such Court, the accused has committed, than might have
been inflicted for such offence by a Presidency Magistrate or a Magistrate of
the first class." Section 32 of the Code lays down the sentence which
magistrates may, ordinarily, impose, which is a term of imprisonment not
exceeding two years, in the case of Presidency Magistrates and Magistrates of
the first class (omitting all reference to fine). But in certain specified
areas, s. 30 empowers the Government to invest a District Magistrate or a
Magistrate, first class, with the power to try, as a magistrate, all offences
not punishable with death. A magistrate so empowered under s. 30, may pass a
sentence of imprisonment for a term of 7 years or less.
Thus, the powers of an Assistant Sessions
Judge, under s. 31(3) and of a magistrate specially empowered under s. 30 to
impose a sentence of imprisonment, are the same, the terms of s. 31 (3) and s.
34 being almost identical. From the terms of s. 439(3), it is clear that the
only limitation on the power of a High Court to impose punishment is in respect
of cases tried by magistrates other than those specially empowered under s. 30,
and thus, vested with higher powers of punishment under s. 34. Sub-section (3)
aforesaid, does not impose any limits on the powers of the High Court in cases
dealt with by a magistrate specially empowered under s. 30. Hence, in such a
case, the High Court has the power to impose a sentence higher than that which
could have been imposed by such a magistrate. That sub-section has no reference
to a trial held by a Court of Session. If the High Court can enhance the
sentence beyond 773 the maximum sentence which could be awarded by a magistrate
specially empowered under s. 30, and acting under s. 34, there is no reason to
hold that the High Court's power in respect of enhancing the sentence in a trial
held by an Assistant Sessions Judge, should be limited in the way suggested on
behalf of the appellants. Sub-section (3) of s. 439, thus, makes it clear that
there is no limitation on the power of the High Court to enhance a sentence to
the maximum prescribed by the Indian Penal Code, except in cases tried by
magistrates other than those especially empowered under s. 30, Criminal
Procedure Code. The learned counsel for the appellants very properly informed
us that there are some reported decisions of some of the High Courts which
have-gone against his contention, and that there is no decision which has taken
a view; in support of his contention. In our opinion, there is no provision in
the Code of Criminal Procedure, which limits the power of the High Court in the
way suggested on behalf of the appellants, and there are no reasons which
militate against the decision of the High Courtís taking that view. The case
relied upon on behalf of the appellants in support of their second contention
(Bed Raj v. The State of Uttar Pradesh (1)), also seems to point to the same
conclusion as will appear from the following observations at p. 584:
" Now, though no limitation has been,
placed on the High Court's power to enhance it is nevertheless a judicial act
and, like all judicial acts involving an exercise of discretion, must be
exercised along well known judicial lines." On the second contention,
there is no doubt that the question of sentence is a matter of discretion which
has to be exercised in a judicial way, that is to say, the sentence imposed by
the trial court should not be lightly interfered with and should not be
enhanced. unless the appellate court comes to the conclusion, on a
consideration of the entire circumstances disclosed in the evidence, that the
sentence imposed is inadequate. In the instant case, the High Court has (1)
 2 S.C.R. 583.
774 pointed out that the incidence of the
offence of dacoity has gone up to such an extent that in proved cases of
serious dacoity, like the one in hand, deterrent punishment is called for. The
High Court was, therefore, justified in imposing the sentence of 10 years'
In view of the circumstances disclosed in the
case, as indicated above, it cannot be asserted that the sentence as enhanced
by the High Court is excessive. The appeal is, accordingly, dismissed.