Shankar Kerba Jadhav & Ors Vs.
State of Maharashtra [1969] INSC 224 (8 September 1969)
08/09/1969 MITTER, G.K.
MITTER, G.K.
SIKRI, S.M.
REDDY, P. JAGANMOHAN
CITATION: 1971 AIR 840 1970 SCR (2) 227 1969
SCC (2) 793
CITATOR INFO:
RF 1979 SC 745 (72) R 1980 SC 962 (111)
ACT:
Code of Criminal Procedure, ss. 417 and
423(1) (a)--Magistrate convicting accused--Sessions Judge acquitting
them--Appeal to High Court by State under s. 417 of Code--Powers of High Court
in respect sentence to be passed by it if it reverses order of acquittal--Can
pass any sentence which magistrate himself could have passed--- Powers not
limited to the sentence which trial court actually passed.
HEADNOTE:
The appellants were charged with offences
punishable under s. 147, 447 and 325 read with s. 149 of the Indian Penal Code
in connection with an incident in which they were alleged to have committed
house trespass into the compound of a school and injured a teacher. The
Magistrate convicted them and sentenced them on various counts to imprisonment
and fine. The. sentences and fines were lower than the maximum that the
Magistrate was empowered to impose under the Code of Criminal Procedure. In
appeal the Sessions Judge acquitted the appellants. The State appealed to the
High Court under s. 417 Cr. P.C. The High Court reversed the orders of the
Sessions Judge and, considering the nature of the acts committed by the
appellants imposed higher sentences and fines on them but they were still not
higher than what the Magistrate could .himself have imposed. In appeal to this
Court against the High Court's judgment it was contended that, the High Court
acting under s. 423(1) (a) is not empowered to impose higher sentences than the
lower court had passed and in any case not without a notice to show cause
against enhancement.
It was also urged that the High Court could
under s. 423(1) (a) pass a sentence "according to law" and thus it
did not enjoy the powers which it otherwise might have exercised under s. 31(1)
of the Code under which a High Court may pass "any sentence authorised by
law".
HELD: (i) The difference in the wording of s.
31 ( 1 ) and s.]23 ( 1 ) (a) is a matter of no moment. The expression
'authorised by law means sanctioned by law while 'according to law' means in
conformity with law. The question to be answered in either case remains the
same i.e. what is the. sentence the High Court is empowered to impose after it
sets aside an order of acquittal when the same is preceded by a sentence of an
inferior court. [232 H] (ii) An appeal is a creature of statute and the power
and jurisdiction of the appellate court must be circumscribed by the words of
the statute. At the same time a court of appeal is a 'court of error' and its
normal function is to correct the decision appealed from if necessary, and its
jurisdiction should be co-extensive with that of the trial court. It cannot and
ought not to do something which the trial court was not competent to do.
There does. not seem to. be any fetter on its
power to do.
what the trial court could do. In this case
the trial Magistrate was competent to pass a sentence of imprisonment up to
two. years and the High Court's jurisdiction hearing an appeal would therefore
be limited to a sentence up to that period, and no more. [233 B] 228 (iii)
Although the Sessions Judge, in hearing the appeal against the appellants'
conviction could not enhance the sentence the High Court in hearing appeal
against the order of acquittal by the Sessions Judge could do so. When the
order of the Magistrate was set aside by the Sessions Judge the matter became
one at large and the High Court hearing an appeal there from was empowered
under s. 423(1) (a) to pass a sentence according to law. It could therefore
pass any sentence which the Magistrate trying the case was empowered to pass
and the High Court in the present case did not exceed that limit. [238 A--C]
The. Acceptance of the appellant's contention would lead to the strange result
that in an appeal against acquittal by the Magistrate the High Court could pass
any sentence which the Magistrate was empowered to do but in an appeal against
a judgment of a Sessions Judge setting. aside a conviction by the Magistrate
the High Court's power would be limited to restoring the sentence which the
Magistrate had actually passed. Further the Sessions Judge would have been
entitled to recommend enhancement of sentence to the High Court if he had
maintained the conviction. And the High Court could suo motu have issued notice
for enhancement.
But on the appellant's contention finality
would be attached to the sentence given by the Magistrate.
Such .could not be attached to the sentence
given by the Magistrate. Such could not be the scheme of the Code. [238 C E]
(iv) When the accused is given notice of appeal under s. 417 and actually takes
part in the hearing before the High Court, it would be superfluous to give him
notice to show cause why a sentence within the competence of the trial
Magistrate should not be passed. The accused knows or ought to know that the
High Court was bound to form its own conclusions on the material before it and
award a sentence which the merits of the case demanded within the limit of the
trial court's jurisdiction. The absence of a show cause notice does not violate
any known principle of natural justice. [238 F--G] On the above findings the
'appeal must be dismissed.
In re: Ramaswami Chetty & Anr. [1902] 2
Weir 487, Muthiah v. Emperor, 29 Madras 190, Sita Ram v. Emperor, 11 Indian
Cases 788. Mahmudi Sheik v. Aji Sheik, 21 Calcutta 48, Parameswara Pillay v.
Emperor, 30 Mad. 48, Maung E. Maung v. The King, A.I.R. 1940 Rang. 118, Emperor
v. Md. Yakub Ali. 45 Allahabad 594, Lakshminarayana v. Apparao, A.I.R. 1950
A,P. 530, Emperor v.Abbas Ali, A.I.R. 1935 Nag.
139, Public Prosecutor v. Annamalai, A.I.R.
1955 Mad. 608, In the Tirumal Raju, A.I.R. 1947 Mad. 368, Jagat Bahadur Singh
v. State of Madhya Pradesh, [1966]2 S.C.R. 822 and Emperor v. Abasali
Yusufalli, 39 Calcutta 157, referred to.
CRIMlNAL APPELLATE JURISDICTION: Criminal
Appeal No. 79 of 1969.
Appeal by special leave from the judgment and
order dated November 21, 1968 of the Bombay High Court in Criminal Appeal No.
818 of 1967.
R.V. Pillai and Subodh Markandey, for the
appellants.
H.R. Khanna, B.D. Sharma for S.P. Nayar, for
the respondent dent.
229 The Judgment of the Court was delivered
by Mitter, J. The six appellants in this appeal were charge sheeted for having
committed offences punishable under ss. 147, 447 and 325 read with s. 149 of
the Indian Penal Code in the court of the Judicial Magistrate, First Class,
Deglur, District Nanded. Considering the evidence on record the Magistrate held
that the accused were members of an unlawful assembly on September 27, 1965 at
the village school Chotwadi with the common object of causing injuries to the
complainant. He also found that the accused had committed house trespass into
the compound of the school and actually caused grievous hurt to the
complainant, a school teacher, in pursuance of the common object of their
unlawful assembly. He convicted the 'accused for offences under ss. 147, 447
and 325 read with s. 149 I.P.C. and sentenced each of them to suffer rigorous
imprisonment for 15 days and to pay a fine of Rs. 50/- and in default of
payment of fine to suffer further rigorous imprisonment for 15 days on the
first count under s. 447 read with s. 149 I.P.C. and sentenced each of them to
suffer rigorous imprisonment for six months 'and to a fine of Rs.' 200/or in
default of payment of fine to suffer further rigorous imprisonment for one month
on the second count under s. 325 read with s. 149 I.P.C. He did not pass any
fresh sentence on the third count under s. 147 I.P.C. He directed that the
substantive sentences of imprisonment passed against accused on both counts
should run concurrently. He also directed that in case the amount of fine was
recovered, Rs. 200/- should be paid to the complainant Murlidhar as
compensation for the injury sustained by him under s. 545(1)(b) of the Code of
Criminal Procedure. The accused went up in appeal which was heard by the
Additional Sessions Judge at Nanded.
The Sessions Judge allowed the appeal and set
aside the orders of conviction and directed the accused to be set at liberty.
The 'order for payment of fine also was set aside.
The State went up in appeal against the order
of acquittal to the High Court. The appeal was allowed by the High Court and
the order of acquittal was set 'aside. The High Court convicted all the six
accused under ss. 147, and 447 and 325 read with s. 149 I.P.C. and taking the
view that the assault on the village teacher was wanton and unprovoked
proceeded to deal with the culprits more firmly that the trying Magistrate. It
passed sentence on the second accused holding him responsible for the blow
which caused the fracture of the left ulna of the complainant, to one year's
rigorous imprisonment and a fine of Rs. 300/- and two months' further rigorous
imprisonment in default under s. 325 read with s. 149 of the Penal Code. It
also held that the remaining accused had played a comparatively minor part and
injuries inflicted by them were simple. The sentence passed on each of them was
six months' rigorous imprisonment and L2Sup.CI/70--3 230 a fine of Rs. 100 and
one month's further imprisonment in default under s. 325 read with s. 149 I.P.C.
A further sentence of three months' imprisonment was passed on all the accused
for the offence under s. 447 read with s. 149. No separate sentence was passed
under s. 147. This court granted special leave to appeal to the accused
"limited to the question of legality of sentence passed by the High
Court." Counsel on behalf of the appellants put forward his argument in a
two-fold manner. His first contention was that it was not open to the High
Court exercising appellate jurisdiction under s. 423 (1)(a) of the Code of
Criminal Procedure to enhance the sentence passed by the trial Magistrate. The
second branch of his argument was that even if the High Court was competent to
do. so, the appellants should have been asked to show cause why the sentence
imposed on them by the Magistrate should not be enhanced and in the absence of
such an opportunity, no enhancement of sentence was competent. As the trial was
by a Magistrate of the First Class the maximum sentence which could have been
imposed on the accused was under s. 32 of the Code limited to a term of
imprisonment not exceeding two years and a fine not exceeding Rs. 2,000/-.
Under the Indian Penal Code the limit of punishment for an offence under s. 447
is imprisonment for a term which may extend to three months or with fine which
may extend to Rs. 500/- or with both, but an offence under s. 325 Can be
punished with imprisonment of either description for a term which may extend to
seven years besides. a fine.
Under s. 417(1) of the Criminal Procedure
Code an appeal against acquittal lies only to a High Court. Under s. 4-18 an
appeal lies on 'a matter of fact as well as on a matter of law except in cases
where the trial is by a jury. Ss.
419 and 420 deal with the procedure for
lodging an appeal and s. 421 gives the appellate court the power to dismiss the
appeal summarily on receiving the petition of appeal if it considers that there
is no sufficient ground for interfering with the impugned order. Under s. 422
it is obligatory on the appellate court if it does not dismiss the appeal
summarily to cause notice to be given to the appellant or to his pleader of the
time and place at which the appeal will be heard and a like notice to be given
to the accused.
The powers of the appellate court in
disposing of the appeal are contained in s. 423 of the Code. The court after
giving the notice of appeal under s. 422 has to send for the record of the case
and after perusing such record and hearing the appellant or his pleader if he
appears and the Public Prosecutor if he appears and in case of appeal under s.
417 the .accused if he appears, it may dismiss the appeal in case it is
satisfied that there is no sufficient ground 231 for interfering. Where the
appeal is from an order of acquittal it may under s. 423(1)(a) reverse such
order and direct that further enquiry be made or that the accused be retried or
committed for trial as the case may be and find him guilty and pass a sentence
on him according to law. No limits 'are here set to the sentence which may be
passed by the appellate court except that it must be "according to
law". This power may be contrasted with the power under cl. (b) of s.
423(1 ) dealing with appeals from a conviction. For such appeals the
Legislature specified the powers of the appellate court with a good deal of
precision.
Under sub-clause (b) a court can-- "(1)
reverse the finding and sentence and 'acquit or discharge the accused or order
him to be tried by a court of competent jurisdiction subordinate to such
appellate court or committed for trial, or (2) alter the finding, maintaining
the sentences, or with or without altering the finding reduce the sentence, or
(3 ) with or without such reduction and with or without altering the finding,
alter the nature of the sentence but subject to the provisions of s. 106 sub-s.
(3), not so as to enhance the sentence." It would appear from the above
that wide though the powers of the appellate court be in dealing with an appeal
from a conviction, it has no jurisdiction to enhance the sentence even if it alters
the finding, or without altering the finding takes the view that greater
punishment than what was meted is called for.
Sub-cl. (1 ) (b) however is not the last word
for cl.
(iA) introduced in the section in the year
1955 expressly provides that a High Court exercising jurisdiction under cl.
1 (b) may enhance the sentence
notwithstanding anything inconsistent therewith contained in the said clause
provided the accused has had an opportunity of showing cause against such
enhancement.
S. 423 cl. (1) (b) is based on the principle
that where it is the convicted person who complains against the punishment
given to him, he should not be put in peril of a greater punishment if the
State takes no exception to the order impugned by the convicted person. The
insertion of cl. (1A) makes it clear that although the powers of courts
subordinate to the High Court are limited under cl. (1)(b) the High Court may
in a proper case enhance the sentence after giving an opportunity to the
accused to show cause against the proposal.
232 Apart from the powers under Chapter XXXI
of the Code (containing sections 404 to 431) which principally deals with
appeals the High Court has powers infer alia of revision under Chapter XXXII of
the Code. Under s. 435 not only the High Court but even courts subordinate to
it may call for and examine the record of any proceeding before any inferior
criminal court for the purpose of satisfying itself as "to the correctness
legality or propriety of any finding, sentence or order recorded or passed and
as to the regularity of any proceeding of such inferior court". S.
439 deals exclusively with the High Court's
powers of revision. Under this section the High Court is empowered in the case
of any proceeding the record of which has been called for by itself or which
has been reported for orders or which otherwise comes to its knowledge, to
exercise the powers conferred on a court of appeal by sections 423,426, 427 and
428 or on a court by s. 338 (power to direct tender of pardon) and may enhance
the sentence but sub-s. (2) of the section lays down that such an order is not
to be made to the prejudice of the accused unless he has 'an opportunity of
being heard either personally or by a pleader in his own defence. Further when
an accused is called upon to show cause why his sentence should not be enhanced
he has a right to challenge his conviction under sub-s. ( 6 ).
Referring to. the above provisions of the
Code counsel for the appellants argued that in 'all cases where it was,
considered necessary the Legislature was careful to: provide that the accused
should never be subjected to a greater punishment by a superior court unless he
was asked to show cause against the proposed enhancement. As there was no such
provision in s. 423 ( 1 ) (a) the Legislature must be taken to have
contemplated that in any case of an appeal against acquittal the accused should
not 'be subjected to a punishment greater than what had been meted out to him
by the punishing court. It was also argued that the words in s.
423 ( 1 ) (a) empowered the appellate court
(the High Court in this case) to pass sentence on the accused .according to law
which is in contrast to the words used in s. 31 (1 ) of the Code under which a
High Court may pass "any sentence authorised by law". It was argued
that s. 423 (1 ) ('a) thus cuts down the power which the High Court might
otherwise have had under s. 31 ( 1 ).
In our view the difference in the wording of
s. 31(1) and s. 423(1) (a) is a matter of no moment. The expression
"authorised by law" means sanctioned by law while "according to
law" means in conformity with law. The question remains 'as to what would
be a sentence according to law when a High Court sets aside an order of
acquittal when the same is preceded by a sentence of an inferior court. Is the
High Court empowered to award any sentence which the law allows under the
relevant section of the 233 Indian Penal Code, or is its jurisdiction limited
to such a sentence as was within the competence of the court punishing the
offenders or again, is it to restore the sentence originally passed ? Let us
look at the question ,apart from the authorities. An appeal is a creature of a
statute and the powers and jurisdiction the appellate court must be
circumscribed by the words of the statute. At the same time a court of appeal
is a "court of error" and its normal function is to correct the
decision appealed from and its jurisdiction should be co-extensive with that of
the trial court. It cannot and ought not to do something which the trial court
was not competent to do. There does not seem to be any fetter to its power to
do what the trial court could do..
In this case the trial Magistrate was
competent to pass a sentence of imprisonment up to two years and the High
Court's jurisdiction hearing an appeal would therefore be limited to a sentence
up to that period and no more.
A special provision for asking the accused to
show cause when the appeal is from an order of conviction or when the High
Court exercises its revisional jurisdiction, is not in derogation of the above
rule. As already indicated, when the accused prefers an appeal and the State is
satisfied with the punishment meted out it is only logical to hold that the
appellant should not stand in peril of something to his further detriment
unless he is put on notice that the power of enhancement may be exercised. The
same applies to the High Court's power of revision under s. 439. The
Legislature felt that when the High Court is exercising powers in this regard,
it should be given all the powers of a court of appeal including the power to
enhance the sentence. Sub-s. (2) of s. 439 is only meant to give an opportunity
to the accused so that he be not condemned unheard and sub-s. (6) is. only an
amplification of that principle and gives him .a right to challenge his
conviction if he is put in peril of enhancement of sentence.
Where however the appeal is from 'an order of
acquittal the matter is at large. There is no sentence which is binding on a
person who was once an accused. He comes before the court with the presumption
of innocence. If the court finds that the acquittal was not justified and that
he was guilty of the offence with which he was charged, it is for the appeal
court to order punishment to fit the crime.
If the appeal is from an order of acquittal
with no prior order of sentence, the punishment must be commensurate with the
gravity of the offence. But if the order of 'acquittal is preceded by an order
of conviction the court hearing the appeal from acquittal should not impose a
sentence greater than what the court of first instance could have imposed
inasmuch as if the trial court had given him the maximum sentence which it was
competent to give and no appeal was preferred by the accused, the State could
234 not have approached the High Court under any provision of the Code for
enhancement of the sentence. The interposition of the order of an intermediate
court of appeal and acquittal of the accused by it should not put the accused
in a predicament worse than that before the trial court.
We may now proceed to examine the earlier
authorities.
In re Ramaswami Chetty & Anr. (1) the
action of the appellate Magistrate enhancing a fine of Rs. 50/- to Rs. 65/- was
held to be illegal by the Madras High Court. In Muthiah v. Emperor(2) it was
said that an appellate court has not an unlimited power but was only empowered
to do which the lower court could and should have done. In Sita Ram v.
Emperor(3) which went up to the Nagpur Judicial Commissioner's court by way of
revision, the appellants had been convicted under s. 324 I.P.C. and sentenced
to rigorous imprisonment for a term of four months each by a Magistrate of the
Second Class. On appeal the District Magistrate maintained the convictions but
altered the sentences on each of the accused to one of fine only; and in
default rigorous imprisonment was ordered for four months.
Before the Judicial Commissioner it was
contended that the sentence of fine imposed on the applicants was illegal so
far as it exceeded the maximum fine which could have been inflicted by the
Magistrate by whom they were tried. The Court held that when the District
Magistrate decided that the case was one punishable with fine only he should
have inflicted a fine which was within the jurisdiction of the trying
Magistrate. The learned Judge relied on the decisions in Mahmudi Sheik v. Aji
Sheik(4), Muthiah v. Emperor(5), Parameswara Pillay v. Emperor(6) and observed
that alike in civil and in criminal cases the power of the appellate court was
measured by the power of the court from whose judgment or order the appeal
before it had been made.
The decisions in Maung E Maung v. The
King(7), Emperor v. Md. Yakub Ali(8), Lakshminarayana v. Apparao(9) and Emperor
v. Abbas Ali(10) are on the same lines. A different note was however struck in
Public Prosecutor v. Annamalai(1). This was a case of an appeal preferred by
the State against the acquittal of two 'accused by a Magistrate.
The High Court finding the accused guilty
took the view that "passing sentence according to law" meant passing
any sentence that could be given for the offence. According to the learned
single Judge the powers (1) [1902] 2 Weir487. (2) 29 Madras 190 (3) 11 Indian
Cases 788 (4) 21 Calcutta 48 (5) 29 Madras, 130 (6) 30 Madras 48 (7) A.I.R.
1940 Rangoon 118 (8) 45 Allahabad 594 (9) A.I.R. 1950 A.P. 530. (10) A.I.R.
1935 Nagpur 139 (11) A.I.R. 1965 Madras 608 235 of an ,appellate court in
hearing an appeal against acquittal were not in any way restricted or limited
to the powers of the trial court. He said:
"Though there is no such limitation or
restriction, still there is one circumstance which altogether cannot be ignored
and which must indeed be considered before imposing the sentence and that is,
what is it that the accused would have got if he was convicted by the
Magistrate. He would not have got more than six months, the maximum the Second
Class Magistrate who tried him can give.
The fact that he has been acquitted should
not place him in a more disadvantageous position than if he were convicted. The
sentence should not therefore be more severe than what he should have got in a
case of conviction." Accordingly the accused were sentenced to six months'
rigorous imprisonment. In an earlier decision of the same High Court In re
Tirumal Raju (1) another learned single Judge though disposed to accept the
contention that the appellate Magistrate had no jurisdiction to enhance the
fine beyond the powers of the trial Magistrate, maintained the order sought to
be revised by exercising powers under s. 439(3) of the Code. Running through
the web of the. above decisions the principle almost universally accepted is
that in exercise of its appellate powers the High Court should not award a
sentence which is beyond the jurisdiction the trial court and in our opinion
this is the principle which should be adopted.
Our attention was however drawn to certain
observations in Jagat Bahadur Singh v. State of Madhya Pradesh(2) where a good
many of the above authorities were taken note of by this Court. Referring inter
alia to the cases of Emperor v. Abasali Yusufalli(3), Emperor v. Muhammad Yakub
Ali(4) Maung E. Maung v. The King(5) and In re Tirumal Raju(6) it was said that
these cases laid down the correct law. The Court also added:
" .... both on principle and authority
it is clear that the power of the appellate court to pass a sentence must be
measured by the power of the court from whose judgment an appeal has been
brought before it." The question is, can this observation be pressed into
service by the appellants on the ground that as the Sessions Judge hearing (1)
A.I.R. 1947 Madras 368. (2) [1966] 2 S.C.R. 822.
(3) 39 Calcutta/57 (4) 45 Allahabad 594.
(5) A.I.R. 1940 Rangoon 118 (6) A.I.R. 1947
Madras 368 236 the appeal from the order of the Magistrate could not have
enhanced the sentence, it was not open to the High Court to do so when hearing
an appeal from the order of acquittal by the Sessions Judge. In other words,
could the High Court have done what the Sessions Judge was not empowered to do.
? In our opinion, the .answer must be in the affirmative.
When the order of the Magistrate was set
aside by the Sessions Judge the matter became one at large and the High Court
hearing an appeal therefrom was empowered under s. 423(1)(a) to pass a sentence
,according to law. It could therefore pass any sentence which the Magistrate
trying the case was empowered to pass. and the High Court in this case did not
exceed that limit. A strange result would follow if we were to accept the
contention. If the accused had been acquitted by the Magistrate and the State
had filed an appeal against the order of acquittal, the High Court would no
doubt have had power to impose 'any sentence, which the Magistrate would have
been entitled to impose. But if the accused is acquitted on appeal by the Sessions
Judge, the power of the High Court would be limited. Surely the Code does not
contemplate this difference in the appeals under s. 417 Cr.P.C.
Further the Sessions Judge would have been
entitled to recommend enhancement of sentence to the High Court if he had
maintained the conviction. And the High Court could sua motu have issued notice
for enhancement. If we were to accept the contention, finality is attached to.
the sentence given by the Magistrate. We do. not think this is the scheme of
the Code. On the other hand the scheme of the Code seems to be to confer final
authority on the High Court. The first contention therefore fails and we hold
that in disposing of an appeal from an order of acquittal the High Court is
competent to. pass a sentence which the trial court was empowered to pass.
The second branch of the argument is. without
any merit. Where the accused is given notice of appeal and actually takes part
in the hearing before the High Court, it would be superfluous to give him
notice to show cause why a sentence within the competence of the trial
Magistrate should not be passed. The accused knows or ought to know that the
High Court was. bound to form its own conclusions on the material before it and
award a sentence which the merits of the case demanded within the limit of the
trial court's jurisdiction. The absence of a show cause notice does not violate
any known principle of natural justice.
On the facts of the case, we are of the view
that the sentence imposed by the High Court should be reduced to that
originally imposed by the trial Magistrate. The' appeal is allowed in part to
this extent.
G.C. Appeal partly allowed.
Back
