Sawal Das Vs. The State of Bihar
 INSC 135 (7 August 1974)
BEG, M. HAMEEDULLAH BEG, M. HAMEEDULLAH
CITATION: 1974 AIR 2276 1975 SCR (2) 607 1975
SCC (3) 156
Practice--Conviction--Sentence not passed by
trial Court--Whether appellate Court could pass sentence.
Penal Code-S. 201.
The applicant, was convicted and sentenced
for an offence under ss. 302/34, 1. P. C. In respect of his conviction under s.
201, I. P. C. no separate sentence was imposed by the trial court. The High
Court converted the conviction to one under s. 302 simpliciter but maintained
his conviction under s. 201.
On appeal, affirming the conviction under s.
201, 1. P. C.
this Court passed an: order of sentence under
s. 201, 1. P.
C. In review application it was contended
that since no appeal had been filed by the State against the failure of the
trial court to pass a separate sentence under s. 201, I.
P. C. or against the failure of the High
Court to specify the sentence this Court could not pass any sentence at all now
tinder this section.
Dismissing the Review Application, Held : (1)
The consequential order imposing a sentence, which by inadvertence was not
passed by the High Court, could- be passed by this Court. The power to pass a
sentence is a power which can and ought to be exercised by all courts which,
having jurisdiction to decide whether the accused is guilty or not, find that
he is.. This power is preserved to the appellate court experessly by s. 423
(1)(d), Cr. P.C. which enacts that it could "make any amendment or
consequential or incidental order that may be just or proper". When a
convictionis affirmed in appeal but no sentence had been awarded by the trial
magistrate the award of a sentence is consequential on and incidental to the
affirmance of theconviction and it is a just and proper order to be passed
under the law. [609E; 610A-C] Vithoda & Anr. v. The State of Bombay, 
2SCR 1049 @ 1054-55, followed..
(2) The order passed showed that the
applicant was not only convicted under S. 201, I.P.C. but his sentence for the
offence was ordered to run concurrently with the life sentence. Only the period
of sentence was not fixed. That was plainly erroneous. The sentence could not
be concurrent for the whole period of the sentence under s. 302 I. P. C. When
that sentence was set aside the period of' sentence under s. 201, I.P.C. had to
be fixed as a necessary consequence. [610 D-E]
CRIMINAL APPELLATE JURISDICTION : Review
Petition (Crl.) No.19 of 1974.
Application for review-of the Court's Judgment
dated the 9th January, 1974 in.
Criminal Appeal No. 70 of 1972.
Appeal by Special Leave from the Judgment and
Order dated the 16th September, 1971 of the Patna High Court at Patna in
Criminal Appeal No. 90 of 1968 R. Jethmalani, S. N. Misra and S.S. Jauhar for
R. C. Prasad, for the respondent.
The Judgment of the Court was delivered by
608 BEG J.-This is an application for review Of an order passed by us on
19-1-1974 on a Criminal Appeal by special leave.
The applicant had been tried, together with
his father Jamuna Prasad and step-mother Kalawati Devi, and convicted for the
murder of his wife Chanda Devi, who, it was alleged, had frequent quarrels with
Kalawati. The applicant and his father and certain other persons were also
charged under Section 201 Indian Penal Code for disposing of the body of Chanda
Devi after the murder knowing that .she bad been murdered.
The Trial Court convicted the applicant Sawal
Das, his father JAmuna Prasad, and his step-mother Kalawati for the offence of
murder under Section 302 read with Section 34 I.
P. C. and sentenced each of them to rigorous
imprisonment for life. The applicant and his father were also convicted under
Section 201 1. P. C. but no separate sentences were iMposed uPon them for this
offence "In view of the fact that they had been sentenced under Sections
304/34 1. P. C." The High Court, on an appeal by convicted persons, set
aside the convictions of Kalawati for both offences and ordered her to be set
at liberty. It also allowed the appeal of Jamuna Prasad the father of the
applicant to the extent that it set aside his conviction under Sections 302/34
1. P. C., but it maintained his conviction under Section 201 I. P. C.
and sentenced him to three years' rigorous
imprisonment. It converted the conviction of the applicant under Section 302/34
I. P. C. to a conviction under Section 302 I. P. C.
simpliciter and maintained the sentence of
life imprisonment in the following terms:
"The appeal of appellant Sawal Das is
dismissed maintaining his conviction and sentence under Section 201, Indian
Penal Code and also maintaining the sentence upon him for the offence of murder
but altering the conviction from Section 302/ 34, to 302, Indian Penal Code
simpliciter. The sentences will run concurrently as already decided by the
Apparantly, the High Court was under the
erroneous impression that the applicant Sawal Das had been not only convicted
but also sentenced by the Trial Court under Section 302 1. P. C. as well as
under 'Section 201 I. P. C.
The Trial Court, as already observed, had
neither passed a separate sentence under Section 201 I. P. C. upon the appli-
cant nor indicated what it could be. It overlooked that, according to law, a
separate sentence ought to be passed for each offence even if sentences are
made concurrent because a Court may as it has in this case, set aside a
conviction so that the need for a separate sentence must necessarily arise in
such an event.
This Court dismissed the application of
applicant's father Jamuna Prasad for leave to appeal against his conviction and
sentence under 'Section 201 I. P. C. It also refused leave to the applicant to
contest any point beyond the correctness of his conviction and sentence under
:Section 302 1. P. C.
This Court, after having considered the
uncertainties, arising from the facts found, as to whether all the three
persons accused of murder or only one of then, and, if so, which of 609 them,
committed. acts which could fasten the liablility for murder upon him or her
sing y, came to the conclusion that the applicant must get the benefit of that
uncertainty as the charge under Section 34 1. P. C. had failed. It could not be
definitely said whether the applicant had actually taken part, and, if so, what
that war,, in' murdering his wife Chanda Devi. Nevertheless, this Court was
convinced that a murder of Chanda Devi had been committed after the' applicant,
his father, and his step-mother were seen following her into a room in their
house. No one had said what actually took place inside it.
As a necessary consequence of setting aside
the conviction of the applicant under Section 302 I.P.C. while affirming this
conviction under Section 201 I.P.C., as no special leave to appeal was granted
against this conviction, this Court had to disposed the case by parking some
order on the sentence under Section 201 I.P.C. Indeed, there was some argument
in the course of hearing of the appeal as to what would be the appropriate
sentence in this state of affairs.
The applicant has now come up on a technical
point. It is that, as no appeal was filed at all by the State against the
failure of the Trial Court to pass a separate sentence under Section 201
I.P.C., or against the failure of the High Court to specify the sentence on the
erroneous assumption that some sentence had actually been passed for an offence
under Section 201 I.P.C. upon the applicant, this Court could not pass any
sentence at all now upon the applicant under Section 201 I.P.C. Learned Counsel
for the applicant brought to our notice Jayaram Vithoba & Anr. v. The State
of Bombay (1) which was a case under the Bombay Prevention of Gambling Act.
This. Court had laid down there (at p. 1054- 55):
"When a person is tried for an offence
and convicted, it is the duty of the Court to impose on him such sentence, as
is prescribed there for. The law does not envisage a person being convicted for
an offence without a sentence being imposed there for. When the Trial
Magistrate convicted the first appellant under Section 5, it was plainly his
duty to have imposed a sentence. Having imposed a sentence under section 4 (a)
he obviously considered that there was no need to impose a like sentence under
section 5 and to direct that both the sentences should run concurrently. But,
in strictness, such an order was the proper one to be passed. The appellants
then took the matter in revision to the High Court, and contended that their
conviction under section 5 was bad. The High Court went into the question on
the merits, and found them guilty under that section. It was the duty of the
High Court, to impose a sentence under section 5, and that is precisely what it
has done. The power to pass a sentence under those circumstances is derived
from the law which enacts that on conviction a sentence shall be imposed (1)
 2 SCR. 1049 @ 1054-55.
610 on the accused, and that is a power which
can and ought to be exercised by all the Courts which having jurisdiction to
decide whether the accused is guilty or not find that he is.
We are of opinion that this power is
preserved to the appellate court ,expressly by section 423 (1) (d) which enacts
that it can make any amendment or- any consequential or incidental order that
may be just or proper'. When a conviction is affirmed in appeal but no sentence
had been awarded by the trial Magistrate, the award of a sentence is
consequential on and incidental to the affirmance of the conviction, and it is
a just and proper order to be passed under the law.
We are unable to agree with the view
.expressed in Ibrahim v. Emperor (AIR 1940 Bom. 129) that such an order would
be an enhancement of the sentence".
We think that what was held in the case cited
above applies to the case before us also. It shows that a consequential order,
in the circumstances set out above, imposing a sentence which, by an inadvertent,
was not passed by the High Court, could be passed by this Court.
The contention of the applicant that, as no
particular sentence was imposed by the High Court or the Trial Court, the
applicant must be deemed not to have been sentenced at all is also incorrect.
The orders passed show that the applicant was not only convicted under Section
but his sentence for the offence was ordered
to run concurrently with the life sentence. Only the period of the sentence was
not fixed. This was plainly erroneous. The sentence could not be concurrent for
the whole period of the sentence under Section 302 I.P.C. Therefore, when that
sentence was set aside, the period of the sentence under Section 201 I.P.C. had
to be fixed as a necessary consequence.
It was also urged before us that we had not
heard the applicant on the question of sentence to be imposed under Section 201
I.P.C. We find, from our judgment, that this was done. However, we have heard
the applicant again on this review application after issuing notice to the
State. We do not find sufficient grounds for revising the sentence of 7 years
rigorous imprisonment and a fine of Rs. 1,000/-, ,and, in default of payment of
fine imprisonment for a further term .of six months. This petition is hereby dismissed.
Review Petition dismissed.
P. B. R.