Report No. 41

31.41. Limit of sentencing powers of the Appellate Court.-

While on the question of sentence, we may refer to the recent judgment of the Supreme Court where it was held1 that the Appellate Court cannot impose a higher sentence than that which could have been inflicted by the Court of the first instance. We recommend the insertion of an express provision in the section giving statutory recognition to this decision in order that the point may not be lost sight of by the lower appellate courts.

1. fagot Bahadur v. State of Madhya Pradesh, 1966 SCR 322: AIR 1966 SC 945.

31.42 Section 423(2).- Su.-section (2) of section 423 may be omitted, as it relates to trials by jury.

31.43. Revision of section 423 recommended.- Section 423 may accordingly be revised as follows.-

"423. Powers of Appellate Court in disposing of appeal.- After hearing the appeal, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or ma.-

(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or committed for trial as the case may be, or find him guilty and pass sentence on him according to law;

(b) in an appeal from a conviction or for enhancement of sentence

(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or

(ii) alter the finding, maintaining the sentence, or

(iii) with or without altering the finding, alter the nature, or the extent, or the nature and the extent, of the sentence, whether so as to enhance or to reduce the same:

(c) in an appeal from any other order, alter or reverse such order;

(d) make any amendment or any consequential or incidental order that may be just or proper;

Provided that in an appeal from a conviction, the sentence shall not be enhanced under su.-clause (iii) of clause (b) unless the accused has had an opportunity of showing cause against such enhancement:

Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal.

31.44. Section 42.-is order dismissing appeal summarily a judgment.-

With reference to section 424, we considered the question whether an order under section 421 dismissing an appeal summarily is or is not a "judgment" for the purposes of section 424. In a Supreme Court decision.1 relating to section 439(6), the majority view was that the order under section 421 was a "final order", while S.R. Das J. (as he then was) described it as a "judgment". In another Supreme Court decision2 holding that the summary dismissal of a jail appeal was a bar to hearing a represented appeal, the dismissal of an appeal under section 421 was described as an "order", and held to be "final" within the meaning of section 430. In yet another Supreme Court case3, holding that a High Court was not bound to give reasons for the summary dismissal of an appeal, section 421 did not fall to be considered.

The question whether, in the case of a dismissal of an appeal under section 421, a "judgment" should be recorded by Courts other than High Courts, has not yet been settled by the Supreme Court. There has been in the past a sharp conflict of judicial opinion4 as to whether an order under section 421 was a "judgment" or not. It is, however, unnecessary to discuss them at length, since the amendment we have suggested above5 in section 421 (requiring every Appellate Court, other than a High Court, to record reasons for the order) will render the question academic.

1. U.J.S. Chopra, (1955) 2 SCR 921: AIR 1955 SC 633 (Bhagwati and Imman JJ.) (Das J. contra).

2. Pratap Singh, (1961) 2 SCR 509 (512): AIR 1961 SC 586 (588).

3. Chittaranjan, AIR 1963 SC 1696 (1700).

4. Rash Behari Das v. Bal Gopal, 1893 ILR 21 Cal 92 (95); Q.E. v. Bhimappa, (1894) ILR 19 Born 732 (734): Emperor v. Lal Bihari, (1916) ILR 38 All 393 (394); State v. Kalu, AIR 1952 Madhya Bharat 81 (90).

5. See paras. 31.28 and 31.29.

31.45. Section 424, proviso.-

It was suggested by a High Court Judge1 that the proviso to section 424 should be amended requiring the appellant to remain in attendance in court on the date on which the appellate judgment was delivered. It was said that this would facilitate his recommittal to jail promptly if his appeal was dismissed. We do not, however, consider it necessary to make such an amendment. The proviso to section 424 is in the nature of an exception to the general rule enacted in section 366(2). It is always open to the Appellate Court to direct the attendance of the appellant on the date fixed for the judgment or to dispense with his attendance if it is not required. The existing law is thus quite sufficient to meet the purpose.

1. F. 3(2)/5.-L.C., Pt. II, S. No. 33(a), p. 126.

31.46. Section 425.-

Section 425(1) requires the order of the High Court on appeal to be certified to the lower court when it is that of a Magistrate, through the District Magistrate. No amendment in this respect has been made by the Bombay and Punjab Acts by which separation was introduced, but it seems to be desirable that where the order appealed against was recorded or passed by a Judicial Magistrate, the order of the High Court should be sent through the Chief Judicial Magistrate and where it was by an Executive Magistrate, the High Court's order should be sent through the District Magistrate. The second sentence of section 425(1) may be revised to read as follows.-

"If the finding, sentence or order was recorded or passed by a Judicial Magistrate, other than the Chief Judicial Magistrate, or by an Executive Magistrate, other than the District Magistrate, the certificate shall be sent through the Chief Judicial Magistrate or the District Magistrate, as the case may be."

31.47. Section 426.-

No changes are needed in su.-sections (1) and (2) of section 426.

With reference to su.-section (2A), the following suggestion1 of the Ministry of Home Affairs was duly considered by us.-

It has been brought to the notice of the Government of India after the amendment of section 426(2A) in 1955 that the power of courts in respect of grant of bail is restricted only to bailable offences. This often leads to anomalous positions. A Court which sentences an accused to two years' rigorous imprisonment, e.g., for cheating, has power to release him on bail pending orders of the Appellate Court, but it has no power to release on bail an accused convicted e.g., for theft, though the sentence may be only for one month. In the case of persons accused of no.-bailable offences the court has discretion to release an accused on bail unless the offence is one punishable with death or life imprisonment.

It has been suggested that same discretion should be allowed to courts exercising powers under section 426(2A). This matter was considered when the Code was being amended in 1955, and it was considered that su.-section 2(A) of section 426 be amended with a view to authorize the convicting court to release the convicted person on bail for a short period, not exceeding 14 days, in order to enable him to appeal and obtain an order of bail from the Appellate Court provided tha.-

(1) such a convicted person was on bail on the date of his conviction; and

(2) his sentence of imprisonment is not more than two years.

This proposal however did not find a place in the amended Code. The proposal is referred to the Law Commission for their consideration.

It has also been pointed out that the wording of the section 426(2A) is somewhat ambiguous, as it refers to persons sentenced to imprisonment and nothing is said about the persons sentenced to fine and imprisonment. It has been stated that some courts have interpreted that the section does not apply to cases in which a person is awarded both fine and imprisonment. The Law Commission will no doubt, consider whether any amendments are required to the section to remove this ambiguity."

We consider that after conviction there is no justification for making a distinction between bailable and no.-bailable offence and we recommend that for the purpose of su.-section (2A) bailable and no.-bailable offences should be dealt with on the same footing. We are, further, of the view that su.-section (2A) should apply only where imprisonment upto one year is ordered (whether for a bailable or no.-bailable offence). The two years' limit (suggested by the Home Ministry) is, in our view, unduly high. An Appellate Court would not ordinarily release the appellant on bail, where he has been sentenced to imprisonment for two years. We recommend that the opening clause of the su.-section may be amended to rea.-

"When any person **** is sentenced by a Court to imprisonment for a term not exceeding one year, and an appeal lies from that sentence."

In our view this su.-section does not exclude cases where in addition to imprisonment, a sentence of fine also is awarded and hence we suggest no alteration in that respect.

1. Govt. of India Ministry of Home Affairs, F. 3(2)/5.-L.C., S. No. 27, Home Ministry File No. 14/8/5.-Judi. II.

31.48. Section 426(2B).-

Su.-section (2B) was inserted in 1945, when special leave could be granted only by the Privy Council which was far away. The Adaptation Order of 1950 substituted "Supreme Court" for "Privy Council" without considering whether there is any practical need for the provision. The Supreme Court is not far away, and when the party has taken the trouble and incurred the necessary expense in obtaining special leave from the Supreme Court, he could easily request that Court, while granting special leave, to give appropriate interim relief. We recommend the omission of the su.-section (2B).

We have also considered the suggestions.-2 to amend su.-section (2B) enabling the High Court to grant interim relief to a person during the interval between the date of the dismissal of his appeal by the High Court and the date of grant of special leave by the Supreme Court. In our view any such widening of the scope of the su.-section is neither necessary nor desirable. With the quick means of transport available nowadays, it should not be difficult for a party to approach the Supreme Court and obtain appropriate interim relief without delay.

1. Gore Lal v. State, AIR 1958 All 667 (672).

2. F. 3(2)/5.-L.C., S. Nos. 8, 26. (Home Ministry file No. 16/16/5.-J.11). (Suggestion of the Ministry of Home Affairs regarding grant of bail to person to whom certificate of fitness for application has been granted).

31.49. Application of section 426 to security cases.-

There is a sharp conflict of judicial opinion as regards the applicability of section 426 to persons who have been directed to execute bonds for keeping peace or maintaining good behaviour under section 118 and to those who have been committed to prison on failure to execute such bonds. The cases1 noted below may be seen. It is unnecessary to discuss the relative merits of those decisions. An order under section 118 undoubtedly affects the liberty of a subject, and we consider it proper that during the pendency of an appeal against that order, the Appellate Court and the High Court should have power to stay the execution of the order and, if the appellant is in custody, to direct his release on bail.

It is true, as pointed out by a High Court Judge2 that there should be some safeguard for keeping peace or maintaining good behaviour when the appellant is on bail. This can be provided by requiring the interim bail bond in such cases to be of the same type as Forms X and XI of Schedule V, with slight alterations so as to provide also for his appearance on the date fixed by the Appellate Court. It is, however, expected that before accepting such bail bond, the Court will satisfy itself not only about the solvency of the bailor and the sureties but also about their power, to control the actions of the appellant.

We recommend the addition of a su.-section to section 426 as follows.-

"(4) When any person is ordered to give security for keeping the peace or for maintaining good behaviour under section 118, the provisions of su.-sections (1) and (2) shall, so far as may be, apply in relation to such person as they apply in relation to a person convicted of an offence."

1. Jagir Singh v. Emp., AIR 1930 Lah 529 (Tapp J.); Charan Mahto v. Emp., AIR 1930 Pat 274. (Macpherson and Dhavle B.); Katwaroo v. Emp., AIR 1932 All 680; Ram Nath v. Nanak Chand, AIR 1932 All 686; Darsu v. Emp., ILR 57 All 264: AIR 1934 All 845 (Bennett J.); Emp. v. Masuria, AIR 1936 All 107 (109).

2. F. 3(2)/5.-L.C., Pt. II, S. No. 33(a).

31.50. Section 427.-

No change is needed in section 427 except the omission of the reference to "section 411A, su.-section (2)".