Jayaram Vithoba And Another vs The State Of Bombay

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Criminal Appeal No. 75 of 1954

Decision Date: 13 December 1955

Coram: Vivian Bose, T.L. Venkatarama Ayyar, N. Chandrasekhara

In this case the Supreme Court of India delivered its judgment on 13 December 1955. The petitioners, Jayaram Vithoba and another, appealed against a judgment of the State of Bombay. The judgment was authored by Justice Vivian Bose and the bench comprised Justices Ayyar, T L Venkatraman and N Chandrasekhara. The decision is reported in 1956 AIR 146 and 1955 SCR (2) 1049. The factual background involved the first appellant being prosecuted under section 5 of the Bombay Prevention of Gambling Act (1887) for being present in a gaming house for the purpose of gambling and also being charged under section 4(a) of the same Act for keeping a gaming house. The case was tried before a Presidency Magistrate who found the appellant guilty of the offence under section 4(a) and imposed a sentence of three months’ rigorous imprisonment. The magistrate also found the appellant guilty under section 5 but declined to impose any separate punishment for that provision. The appellant then sought revision before the High Court. The High Court set aside the conviction under section 4(a) but affirmed the conviction under section 5 and imposed a sentence of three months’ rigorous imprisonment for the offence under section 5. The appellant contended that the High Court lacked authority under section 423(1)(b) of the Code of Criminal Procedure (Act V of 1898) to award a sentence for section 5 where the magistrate had not imposed any sentence for that provision. He further argued that the sentence constituted an enhancement of the penalty and was therefore illegal because the law required a notice of enhancement, which had not been given. The Supreme Court held that section 423(1)(b) did not apply to the present circumstance but the High Court did possess authority to impose the sentence under section 423(1)(d). The Court explained that the law does not contemplate a conviction without a corresponding sentence and that the High Court’s imposition of a sentence was merely a consequent and incidental step following its confirmation of the conviction. Accordingly, the order was a just and proper exercise of power under section 423(1)(d). The Court further observed that the sentence could not be characterized as an enhancement because it was the first imposition of a penalty in the appeal. Even assuming it were an enhancement, the Court found that the lack of a formal notice under section 439(2) did not render the order defective, since the appellant had been given an opportunity to show cause against the conviction and any alleged enhancement, and no prejudice resulted from the absence of a statutory notice. The Court cited Ibrahim v Emperor (AIR 1940 Bombay 129) in support of its reasoning.

The Court noted that the decisions in Superintendent and Remembrancer of Legal Affairs v. Hossein Ali (A.I.R. 1938 Cal. 439) and Pradip Chaudhry v. Emperor (A.I.R. 1946 Pat. 235) were disapproved. The matter before the Court was Criminal Appeal No. 75 of 1954, filed by special leave against the judgment and order dated 24 July 1953 of the Bombay High Court. The appeal arose from Criminal Revision Application No. 669 of 1953, which itself stemmed from the judgment and order dated 29 June 1953 of the Presidency Magistrate, 9th Court at Bandra, Bombay, in case No. 11872/73/P of 1952. Counsel for the appellants appeared, while counsel for the respondent was also present. The judgment was delivered on 13 December 1955 by Justice Venkatramana Ayyar.

At the relevant time, the first appellant occupied room No. 10 in House No. 334, Bazar Road, Bandra, Bombay. Acting on information that the room was being used as a gaming house, Sub-Inspector Bhatt of the police raided the premises on 19 September 1952 and found the two appellants together with four other persons in possession of gaming instruments. All of them were prosecuted under section 5 of the Bombay Prevention of Gambling Act, 1887, for being present in a gaming house for the purpose of gambling. In addition, the first appellant was charged under section 4(a) of the same Act for keeping a gaming house. The Presidency Magistrate who tried the case found the first appellant guilty under section 4(a) and sentenced him to three months’ rigorous imprisonment. The magistrate also found him guilty under section 5 but did not award a separate sentence for that offense. The second appellant was found guilty under section 5 and was sentenced to three months’ rigorous imprisonment. Both appellants filed a revision before the High Court. The High Court set aside the first appellant’s conviction under section 4(a) but confirmed the conviction under section 5, and it imposed a sentence of three months’ rigorous imprisonment under section 5. The conviction and sentence of the second appellant under section 5 were both confirmed. The present appeal challenges only the first appellant’s case. Both lower courts had concurred that the appellants were present in a gaming house for the purpose of gambling, establishing the offense under section 5, and that finding was not contested before this Court. The sole issue raised was whether, after setting aside the conviction under section 4(a), the High Court should also have set aside the sentence that had been imposed under that subsection, and whether the High Court possessed authority under the Code of Criminal Procedure to impose a sentence under section 5 when the magistrate had not originally sentenced for that provision. This contention was premised on the interpretation of section 423 of the Code.

Section 423(1)(b) of the Code of Criminal Procedure conferred several distinct powers on a court hearing an appeal against a conviction. The provision authorised the appellate court, first, to reverse the original finding and the accompanying sentence, to acquit the accused, or to discharge him, or alternatively to order a retrial. Second, the court could modify the original finding while leaving the original sentence unchanged. Third, the court could reduce the sentence, either with or without changing the original finding. Fourth, the court could alter the sentence, again either with or without changing the finding, but, subject to the limitation in section 106(3), the court could not increase the sentence.

The parties argued that the present appeal did not fall within any of the four categories described in section 423(1)(b). They maintained that the conviction under section 5 of the Act had already been affirmed by the lower courts and that no sentence under that section had been imposed by the magistrate. Consequently, they contended that there was no issue of reducing or altering a sentence, because no such sentence existed, and therefore the High Court’s decision could not be sustained under any provision of the Code. Moreover, they asserted that the High Court’s imposition of a sentence under section 5 amounted to an enhancement of the penalty, which was illegal because the law required that a notice be issued before such an enhancement could be effected.

To support this contention, the appellants relied on the decision in Ibrahim v. Emperor (1). In that case, the accused had been convicted under both section 4(a) and section 5 of the same Act, but the magistrate had passed a sentence only under section 4(a) and none under section 5. On appeal, the learned judges set aside the conviction under section 4(a). Regarding sentencing, they observed that the magistrate was incorrect in failing to impose a separate sentence under section 5 and added that, because the magistrate had not imposed a sentence under section 5, the appellate court could not impose one, for doing so would constitute an enhancement of the sentence. The appellants argued that these observations clearly supported their position.

However, the Court noted a contrasting approach in two other decisions. In Superintendent and Remembrancer of Legal Affairs v. Hossein Ali (2), the accused had been convicted by the magistrate of offences under section 363 and section 498 of the Indian Penal Code, and the magistrate sentenced him only under section 363, leaving section 498 without a separate sentence. On appeal, the Sessions Judge set aside the conviction under section 363 but upheld the conviction under section 498. When the question arose whether the Sessions Judge could impose a sentence under section 498, the High Court held that he could do so under section 423(1)(b) of the Code, reasoning that the appellate court had altered the conviction from one under section 363 to one solely under section 498. The Court observed that this view rested on a misunderstanding of the true meaning of the words “alter the finding” in section 423(1)(b). The Court explained that when a statute creates distinct offences, each offence constitutes a separate matter with its own incident, and the Code requires that each offence be charged and recorded separately. Consequently, when there are multiple convictions, there are separate findings for each offence, and “altering the finding” refers to changing the finding relating to a specific offence, not to substituting one offence for another.

In law, each offence represented a separate matter with its own factual incident. Section 233 of the Code of Criminal Procedure required that each offence be charged in a distinct proceeding. Section 367 further mandated that the judgment identify the specific offence and the law under which the accused had been convicted. When a conviction covered more than one offence, the court had to record separate findings for each individual charge. Section 423(1)(b) spoke of a finding being reversed or altered, and it applied to the finding concerning each individual offence. Accordingly, when the High Court set aside the conviction under section 4(a) and affirmed the conviction under section 5, it produced two separate findings – one reversal and one affirmation. Because the two findings were distinct, no alteration of any finding occurred under the meaning of section 423(1)(b).

The decision in Superintendent and Remembrancer of Legal Affairs v. Hossein Ali (1) was subsequently applied in Pradip Chaudhry v. Emperor (2). In that case, the Sessions Judge convicted the accused under sections 324 and 148 of the Indian Penal Code and imposed imprisonment only for the offence under section 324. No sentence was imposed for the conviction under section 148, and the matter was placed on appeal before the High Court. The High Court set aside the conviction under section 324 and confirmed the conviction under section 148. The accused argued that the High Court lacked authority under section 423(1)(b) of the Code of Criminal Procedure to award a sentence for the offence under section 148. The trial judges responded that the court possessed “ample power to transpose the sentence, so long as the transposition does not amount to enhancement.” The present Court could not accept that reasoning because the statute contained no provision for transposition of a sentence. Section 423(1)(b) merely allowed alteration of a finding and the maintenance of the existing sentence, as noted in (1) A.I.R. 1938 Cal. 439 and (2) A.I.R. 1946 Patna, 235. The provision applied only where a finding of guilt under one section was altered to a finding of guilt under a different section. The section clearly distinguished reversal of a finding from alteration, prescribing acquittal, discharge, or retrial for a reversal, and maintenance, reduction, or alteration of the sentence for an alteration. The order issued by the High Court did not alter any finding; it merely reversed the finding under section 4(a) and confirmed the conviction under section 5. Consequently, it was concluded that, based on the language of section 423(1)(b), the High Court could not legally impose a sentence under section 5. A remaining issue was whether the High Court possessed any other authority to impose that sentence. The inquiry into the existence of such ancillary power required examination of the general provisions of the Code of Criminal Procedure. Ultimately, the legal framework obliged the trial magistrate to impose sentencing at the time of conviction, and any deviation had to be sanctioned by express statutory authority.

In this case the Court observed that once a person is convicted of an offence the law requires that a sentence be imposed in accordance with the statutory provisions. The legal framework does not contemplate a situation in which a conviction is recorded without an accompanying sentence. Accordingly, when the trial Magistrate pronounced a conviction against the first appellant under section 5, it was plainly his duty to fix a punishment. After having already imposed a sentence pursuant to section 4(a), the trial Magistrate evidently thought that it was unnecessary to impose an additional sentence under section 5 and to order that the two sentences run concurrently; nevertheless, strictly speaking, the proper order would have been to specify the additional punishment as well. The appellants subsequently filed a revision petition before the High Court, contending that the conviction under section 5 was untenable. The High Court examined the merits of the case, found the appellants guilty under that provision, and consequently imposed a sentence in accordance with section 5. The Court held that the High Court’s duty to impose such a sentence derived from the principle that on conviction a court must award a punishment, a power that all courts possessing jurisdiction to determine guilt are required to exercise. This power, the Court said, is expressly preserved for the appellate court by section 423(1)(d), which authorises the court to “make any amendment or any consequential or incidental order that may be just or proper.” When an appellate court affirms a conviction but the trial magistrate had failed to award a sentence, the imposition of a sentence becomes a consequential and incidental order that is just and proper under the law. The Court rejected the view expressed in Ibrahim v. Emperor (1) that such an order could be characterised as an enhancement of the sentence, noting that enhancement presupposes the existence of an earlier sentence to be heightened. Since the trial magistrate had not imposed any punishment, the sentence awarded on appeal could not be described as an enhancement. Consequently, the Court concluded that the High Court acted within its competence in fixing the sentence. Additionally, the Court noted that against the conviction by the Presidency Magistrate no appeal was available, prompting the appellants to prefer a revision before the High Court. Under section 439(1) of the Code of Criminal Procedure the High Court, while hearing a revision, may exercise the powers of a court of appeal provided by section 423 and may enhance a sentence. However, section 439(2) bars the passing of an enhancement order unless the accused has been afforded an opportunity to be heard in his defence, and section 439(6) further protects the accused’s right, when proceedings are taken under section 439(2), to show cause against his conviction.

When proceedings are initiated under section 439(2) of the Code of Criminal Procedure, the accused must be given an opportunity to show cause against both the conviction and any enhancement of the sentence that may be imposed. In the case before the Court, the first appellant was afforded this opportunity to present his arguments on both matters, and he actually exercised that right. The appellant, in his revision petition, contested his guilt under section 5 of the relevant Act, and after examining all of the evidence, the High Court confirmed the conviction. Section 5 provides that a person found guilty under that provision shall receive a minimum punishment of three months’ imprisonment and a fine of two hundred rupees, where the offender has a prior conviction for the same offence. The first appellant had such a previous conviction; consequently, the minimum term of three months’ rigorous imprisonment that the learned Presidency Magistrate imposed was the least sentence that could be legally imposed under section 5. The High Court therefore observed that because the appellant admitted a prior conviction under section 5, the sentence of three months’ rigorous imprisonment was justified. The remaining issue for the Court was whether the High Court’s order could be set aside for failing to give notice as required by section 439(2). The statute does not prescribe any specific formalities that must be observed before taking action under that section; it merely mandates that the accused be given a chance to show cause against the conviction and any enhancement. Since the first appellant was heard on both of those questions, the statutory requirements were satisfied. Accordingly, the order of the High Court may be upheld under section 439 even if it is characterized as an enhancement of the sentence. Moreover, the appellant suffered no prejudice from the absence of a formal notice under section 439(2). For these reasons, the Court dismissed the appeal.