U.J.S. Chopra vs State Of Bombay

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

Court: Supreme Court of India

Case Number: Criminal Appeal No. 20 of 1954

Decision Date: 25 March 1955

Coram: Natwarlal H. Bhagwati, Syed Jaffer Imam

In this matter the Supreme Court of India examined an appeal brought by U.J.S. Chopra against the State of Bombay. The judgment was pronounced on 25 March 1955. The bench that heard the case comprised Justice Natwarlal H. Bhagwati, Justice Syed Jaffer Imam and Justice Das Sudhi Ranjan. The parties were identified as petitioner U.J.S. Chopra and respondent State of Bombay. The decision is reported in 1955 AIR 633 and 1955 SCR (2) 94. The legal provision that framed the dispute was Section 439 of the Criminal Procedure Code, 1898 (Act V of 1898), especially sub-sections (1), (2) and (6). The appellant had been convicted by the Presidency Magistrate of Bombay of an offence punishable under Section 66(b) of the Bombay Prohibition Act (Act XXV of 1949). The magistrate sentenced the appellant to imprisonment until the rising of the court and imposed a fine of rupees 250, with a default provision that a failure to pay the fine would result in rigorous imprisonment for one month. The appellant challenged the conviction by filing an appeal to the High Court at Bombay. The High Court dismissed the appeal summarily, without a full hearing. After this dismissal the State of Bombay filed a revision application before the same High Court seeking to enhance the sentence imposed on the appellant. Pursuant to Section 439(2) of the Code a notice was issued to the appellant requiring him to show cause why the sentence should not be increased. The question that arose was whether the appellant, having already had his appeal dismissed, could also be required under Section 439(6) to show cause against the validity of his conviction when he was asked to show cause against the enhancement of his sentence.

The Court held that the summary dismissal of the appellant’s appeal did not bar him from invoking the right created by Section 439(6) of the Criminal Procedure Code. The Court explained that sub-section (6) confers a new and valuable right on an accused person and that the language of the provision does not impose any limitation based on prior proceedings such as a dismissal under sub-section (1). Consequently, whenever an application for enhancement of a sentence is made, the statute obliges the court to issue a notice under sub-section (2) and, once such notice is served, to allow the accused, under sub-section (6), to argue not only against the enhancement but also against the conviction itself. The Court further clarified that sections 421, 435 and 439 do not grant the High Court a discretion to refuse to consider an appeal or revision that has been presented before it. Although the High Court enjoys a wide discretion in deciding the merits of a case, that discretion does not permit it to decline to examine the appeal or revision. Accordingly, the Court affirmed that the High Court has a binding duty to consider any appeal or revision that is properly before it, even when the appeal has been summarily dismissed, and to apply the procedural safeguards embodied in Section 439(6) to protect the accused’s right to contest his conviction.

The Court explained that a High Court, whether exercising appellate or revisional jurisdiction, is required to hear the appeal or revision and render a decision, and in reaching that decision it enjoys a very wide discretion. The Court held that it is incorrect to say that the judgment of the trial court merges into or is replaced by the judgment of the High Court only in those situations where the appeal or revision is heard on notice to the respondent and is either wholly or partly allowed or dismissed. The same principle applies when the appeal or revision is heard without giving notice to the respondent and is dismissed summarily; the nature of the dismissal—summary or otherwise—does not affect the existence of a High Court judgment in any of the three circumstances. The only substantive distinction, the Court observed, is that in the first two circumstances the High Court judgment is final with respect to both parties, whereas in the third circumstance—where an appeal or revision filed by the accused is summarily dismissed without issuing notice to the State—the judgment is final only with respect to the accused who raised the appeal or revision. This distinction does not arise from any technical doctrine of res judicata, because such a doctrine does not apply in criminal cases; rather, it is founded on the general principle of the finality of judgments. Accordingly, after a judgment is rendered in the first two situations, the State cannot file any further application for enhancement of sentence, and consequently section 439(6) cannot be invoked. In contrast, in the situation of a summary dismissal, the judgment is not final as to the State; the State may therefore seek enhancement of the sentence, and if it does so, the accused regains the right to show cause against his conviction under the special provisions of section 439(6). Per Bhagwati and Imam JJ, a judgment pronounced by the High Court after a notice has been issued and a full hearing conducted in the presence of both parties is inevitably the product of a thorough consideration of the evidence and of all arguments. Such a judgment replaces the lower-court judgment and becomes the sole final judgment to be executed by the lower court in accordance with law. However, when a convicted person files an appeal from jail and the High Court summarily dismisses it under section 421, or when the person’s revision application is dismissed summarily or in limine without hearing him or his counsel, the High Court merely refuses to entertain the appeal or revision. The order of dismissal or rejection in such a case cannot be described as an expression of the court’s opinion arrived at after a complete consideration of evidence and arguments. Consequently, no notice for enhancement of sentence can be issued by the High Court after it pronounces a judgment following a full hearing held in the presence of both parties, whether the judgment is rendered in the exercise of its appellate or revisional jurisdiction.

It was explained that a High Court, when acting in its appellate or revisional capacity, may issue a notice for enhancement of sentence either on its own initiative or at the request of an interested party, provided that the judgment of the lower court remains in force and has not been replaced by a new judgment rendered by the High Court in the exercise of its appellate or revisional jurisdiction. In situations where the lower-court judgment is being reviewed after a notice has been served on the opposite party and a full hearing has been conducted with both sides present, the High Court may issue a notice for enhancement of sentence only before it pronounces a judgment that supplants the original lower-court decision. While such a hearing is ongoing, it is the responsibility of the High Court, or of the opposing party, to decide before delivering its judgment whether a notice for enhancement of sentence should be issued to the accused. The discussion of relevant case law was then followed by the commencement of the judgment.

The matter before the Supreme Court was Criminal Appeal No. 20 of 1954, arising from an order dated 26 August 1953 of the Bombay High Court in Criminal Revision Application No. 518 of 1953, which itself sprang from an order dated 9 December 1952 of the Presidency Magistrate, Bombay, in Case No. 3442/P of 1952. The appellant had been convicted on 9 December 1952 by the Presidency Magistrate, 13th Court, Bombay, of an offence under section 66(b) of the Bombay Prohibition Act (Act XXV of 1949). The conviction attracted a sentence of imprisonment until the rising of the Court and a fine of rupees 250, or alternatively, rigorous imprisonment for one month. The appellant filed an appeal to the Bombay High Court, but the appeal was dismissed summarily on 19 January 1953. Following this dismissal, the State of Bombay filed a criminal revision application before the High Court seeking enhancement of the sentence. After issuing a notice to the appellant under section 439(2) of the Code of Criminal Procedure, the appellant’s counsel invoked the appellant’s right under section 439(6) to show cause against the conviction, a right the High Court refused to entertain. The High Court also declined to make any order enhancing the sentence. Subsequently, the High Court granted leave to the appellant to appeal to this Court and issued a certificate of fitness under article 134(1)(c) of the Constitution of India. The central question before this Court was whether the summary dismissal of the appellant’s appeal barred him from invoking the provisions of section 439(6) when he was later required to show cause why his sentence should not be enhanced.

In this appeal the Court was asked to decide whether the appellant could be required to show cause why the sentence imposed on him should not be increased. The answer depended on a correct interpretation of section 439 of the Code of Criminal Procedure. For the purpose of this case, the relevant portion of that section reads as follows: “439. (1) 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, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 423, 426) 427 and 428 or on a Court by section 338, and may enhance the sentence; and when the Judges composing the Court of Revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 429. (2) No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence. (3) … (4) … (5) Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed. (6) Notwithstanding anything contained in this section, any convicted person to whom an opportunity has been given under sub-section (2) of showing cause why his sentence should not be enhanced shall, in showing cause, be entitled also to show cause against his conviction.”

To understand the true meaning, purpose and reach of sub-section (6) of section 439, the Court considered its historical background. In England there is no statutory provision that permits the Crown to appeal an acquittal or to seek enhancement of a sentence; instead, a person who has been convicted enjoys a right of appeal both against the conviction and the sentence imposed. Consequently, under English criminal procedure the question of increasing a sentence arises only when the convicted accused himself appeals. In India, the power of the Court to increase a sentence has changed several times. The Code of Criminal Procedure of 1861, in section 407, barred any appeal from an acquittal and expressly allowed appellate courts to reduce sentences under sections 425 and 426; similar powers of reduction were granted to the Sudder Court as a Court of Revision under sections 405 and 406, but no authority was given to that court to increase a sentence. The Code of 1872 introduced section 272, which permitted the Government to file an appeal from an acquittal, a provision that was repeated in section 417 of the Code of 1882, corresponding to the present section 417. Section 280 of the 1872 Code expressly authorised all appellate courts to enhance sentences, thereby granting them the power to increase punishments.

In this case the Court observed that the authority to increase a sentence was removed from the ordinary appellate courts by section 423 of the Code of 1882, a provision that is reproduced today as section 423 of the present Code, and that the same authority was placed in the High Court under section 439 of the Code of 1882 to be exercised as part of the High Court’s revisional power. The present provision 439 continues that legislative scheme, showing that the legislature intended that this extraordinary power be exercised only by the High Court and by no other court. Nevertheless a practice developed whereby, when a matter came before the High Court for enhancement of sentence, the High Court treated the conviction as final and proceeded to consider the question of enhancement on the basis of that conviction, as illustrated in Emperor v. Chinto Bhairava (1908) I.L.R. 32 Bom. 162. Subsequently Act XVIII of 1923, by virtue of section 119, amended section 439 by inserting the present sub-section (6) and also amended section 369, replacing the opening words “No Court other than a High Court” with the longer expression “save as otherwise provided by this Code or by any other law for the time being in force, or, in the case of a High Court established by Royal Charter, by the Letters Patent of such High Court, no Court”. The effect of these amendments was twofold. First, the judgment or order of the High Court made in exercise of its original criminal jurisdiction became final, a status it had not possessed under the original wording of section 369, subject however to the other provisions of the Code or to the Letters Patent of the High Court. Second, the amendment nullified the earlier practice and created a statutory right for an accused who faced the danger of having a sentence imposed by the trial court or the lower appellate court enhanced by the High Court in exercise of its revisional jurisdiction, whether the High Court acted suo motu, on the request of the State, or in exceptional cases even on the request of another interested person. The Court explained that sub-section (6) therefore granted a new and valuable right to the accused, intended as a safeguard against the State or any other interested person filing frivolous revision applications solely to increase a sentence. The Court noted that whoever seeks an enhanced sentence must be prepared to accept the opposite risk—that the accused may be completely acquitted. This risk, described as a quid pro quo, is the price that the State or any interested party must be willing to pay for the privilege of applying for an enhancement. Finally the Court observed that the language of sub-section (6) does not impose any limitation on the right it confers upon the accused; the newly created right is not made contingent upon any event that may have occurred prior to the revision application made under sub-section (1) for enhancement of sentence, and therefore provides the accused with an unconditional opportunity that is not dependent on earlier procedural steps.

The statute plainly provides that whenever an application for enhancement of sentence is filed, a notice must be issued under sub-section (2) directing the accused to show cause. Once such notice is served, sub-section (6) obligates the authorities to give the accused an opportunity to contest not only the proposed increase but also his original conviction. The provision does not restrict this right to situations where the accused has not previously raised a challenge to his conviction. If the accused had earlier appealed his conviction and sentence to a court other than the High Court and subsequently lost after a full hearing before his opponent, it is evident that he already received a chance to show cause. Nevertheless, no authority can argue that this earlier opportunity bars him from obtaining another chance to contest his conviction and sentence either through a fresh application under sub-section (1) or by defending himself when the State seeks revision under section 439(1). In such a revision proceeding, a notice would be issued to the accused under section 439(2), triggering the same right to show cause. The earlier case of Kala v. Emperor (1) is cited to illustrate this principle. Enhancement of a sentence clearly intrudes upon the personal liberty of the accused and therefore represents a serious matter. The Legislature could reasonably have intended that whenever a sentence is threatened with increase, the High Court must also re-examine the legality of the conviction in view of the new jeopardy. Such a re-examination should occur regardless of any prior steps taken by the accused before the enhancement application and the issuance of the notice. Sub-section (6) itself reflects this intention by stating that it operates ‘notwithstanding anything contained in this section’ clearly.

Several decisions, including Emperor v. Jorabhai (2), Crown v. Dhanna Lal (3), Emperor v. Inderchand (4) and King v. Nga Ba Saing (5), have confined the effect of the non obstante clause to sub-section (5) alone. I find this narrow construction difficult to accept as correct because it does not accord with the broader purpose of the provision. Sub-section (5) merely provides that where an appeal exists and no appeal is filed, the court shall not entertain any revision proceedings initiated by the party who could have appealed. The purpose of this clause is to ensure that a person entitled to appeal first exhausts that remedy before seeking a revision. In other words, sub-section (5) functions as a disabling provision that bars a party who neglects to use his appeal right from launching a revision. Consequently, if the accused, under sub-section (6), shows cause against his conviction, he is not himself initiating revision proceedings. He is merely exercising the right to be heard that arises because another party has moved for enhancement and a notice under sub-section (2) has been served. Thus, the protective language of sub-section (6) operates independently of the disabling effect of sub-section (5) and does not require any special exemption. Even assuming that the act of showing cause could be characterised as a revision application, the non obstante clause in sub-section (6) would preserve it from the operation of sub-section (5). I therefore see no reason to hold that the non obstante provision fails to protect the accused’s right to show cause against his conviction.

The accused exercised only the right to show cause against his conviction, a right that arose because another party had commenced proceedings for enhancement and a notice had been issued to him under subsection (2). In that situation the accused, as cited in the authorities (1) A.I.R. 1929 Lah. 584, (2) [1926] I.L.R. 50 Bom. 785, (3) [1929] I.L.R. 10 Lah. 241, (4) A.I.R. 1934 Bom. 471, (5) A.I.R. 1939 Rang. 392, was placed on the defensive and the act of showing cause against the proceedings that had been initiated against him could not properly be described as proceedings “at his instance,” which the High Court, by sub-section (5), was enjoined not to entertain. Strictly speaking sub-section (6) required no exemption from sub-section (5). Assuming that the act of showing cause under sub-section (6) was tantamount to an application in revision initiated by the accused and that such an application was saved from the operation of sub-section (5) by the non-obstante clause of sub-section (6), the Court did not see any reason to hold that the non-obstante clause of sub-section (6) concerned only sub-section (5). Although the accused, while showing cause under sub-section (6), could advance all arguments that he might have raised in an appeal—and perhaps even more—this act of showing cause was, at least in form, a continuation and indeed an integral part of the revision proceedings that might have been initiated suo motu by the Court, by the State, or by any other interested party. The general rule was that the exercise of revisional power was entirely a matter of discretion to be exercised by the High Court not capriciously but on sound judicial principles. Sub-section (1) itself stressed this aspect by employing the words “in its discretion.” The non-obstante clause may therefore have been designed to emphasise that the new right conferred by sub-section (6) was a matter of right and did not rest wholly on the Court’s discretion. Further, the non-obstante clause retained special significance even where the accused had already obtained an opportunity, by means of an appeal or a revision filed by him in the High Court, to show cause against his conviction. Under sub-section (1) a revision could be entertained only of judgments or orders of criminal courts inferior to the High Court and did not sanction any revision of the judgment or order of the High Court itself. Consequently, where the accused had unsuccessfully challenged the legality or propriety of his conviction in an appeal or revision application before the High Court, he could not again initiate a substantive application before the High Court under section 439(1) of the Code to re-examine his conviction or sentence, because that would require the Court to revise its own earlier judgment or order, which the High Court was not permitted to do under section 439(1). But

Assume that the appeal or revision application filed by the accused is dismissed in such a manner that the State or another interested person may still move for an enhancement of the sentence. In that situation, the High Court may commence proceedings under section 439(1) and issue a notice to the accused under section 439(2). The Court observed that nothing in subsection (6) bars the accused, in those circumstances, from again showing cause against his conviction and sentence. The only argument that could be raised with any plausibility is that permitting the accused to challenge his conviction or sentence under subsection (6) would conflict with the provisions of subsection (1), effectively allowing the accused to ask the High Court to revise its own earlier order, even though subsection (1) does not permit a substantive application by the accused. The Court noted that the non-obstat clause in subsection (6) appears to have been inserted precisely to negate such an argument.

Although, as a general rule, an accused whose appeal or revision application has been dismissed by the High Court cannot file a substantive application under subsection (1), the Court found no difficulty in construing section 439(6) as granting the accused, who faces the risk of a sentence enhancement, a second opportunity to do what he was previously unable to do. In other words, the Legislature has given a new defensive right of revision to the accused in response to a fresh offensive taken by the State. Even if the act of showing cause under subsection (6) is characterized as a revision, nothing prevents the Legislature, in the interest of individual liberty, from providing a limited right of revision of the High Court’s own judgment or order. By adding subsection (6) to section 439, the Legislature has done exactly that, and the non-obstat clause is intended to meet and repel any objection that subsection (1) precludes the High Court from revising its own order.

The Court held that so long as proceedings may be initiated against the accused for enhancing his sentence and a notice is issued requiring him to show cause, the accused must retain, under subsection (6), the right to show cause against his conviction, irrespective of any earlier dismissal. This is the Court’s reading of the subsection. The Court further referred to the decision in Emperor v. Mangal Naran (1), where Chief Justice McLeod expressed the view that even after an appeal had been heard on its merits and dismissed, a notice to enhance the sentence would still give the accused the right to show cause against his conviction, although any attempt to set aside the conviction would have little chance of success.

In this case, the Court observed that when a merit hearing of an appeal ends in dismissal and a subsequent notice is issued for enhancement of the sentence, the accused retains the statutory right under section 439(6) to show cause against his conviction, although any effort to overturn the conviction would be unlikely to succeed. The Court further explained that, in such circumstances, no application for enhancement should even arise, and consequently the issue of the accused exercising the right provided by subsection (6) would not be presented for consideration. The Court pointed out that this aspect has not been sufficiently addressed by the various High Courts of India, except for a decision of a Full Bench of the Lahore High Court, and it found it appropriate to refer to those decisions at this stage.

In the cited authority Emperor v. Jorabhai, the accused was convicted by the Sessions Judge and appealed to the High Court. After a full hearing and service of notice of appeal on the State, the High Court bench dismissed the appeal on its merits. Following the judgment, the Government pleader orally applied for enhancement of the sentence, and a notice was issued to the accused under section 439(2) of the Code. The accused claimed the right under subsection 6 to challenge his conviction. The Court, through the judgments of Fawcett and Madgavkar, JJ., held that section 439(6) does not permit a rehearing of the appeal on its merits. Similarly, in Ramlakhan Chaudhury v. Emperor, where the appeal had previously been dismissed after a full hearing, the Court applied the principle from Emperor v. Jorabhai and ruled that the accused could not, under section 439(6), challenge the correctness of his conviction a second time while showing cause against enhancement of sentence. This principle was subsequently extended to cases where the High Court had summarily dismissed the appeal after hearing the accused or his counsel, such as Emperor v. Batubai, Emperor v. Haji Khanhamoo, King v. Nga Ba Saing, Emperor v. Naubat, as well as to cases where the jail appeal was summarily dismissed without hearing, including Emperor v. Koya Partab, Emperor v. Abdul Qayum, Ramchand v. Hiralal, and State v. Bhavani Shankar. The rule was also applied to dismissals of revision petitions after hearing counsel, for example In re Saiyed Anif Sahib, Emperor v. Sher Singh, Crown v. Dhanna Lal, and to a revision petition dismissed summarily, as in Emperor v. Inderchand. The Court clarified that, for the purposes of section 439(6), it makes no difference whether the judgment of dismissal was rendered in appeal or revision, or whether the dismissal was summary or after a full hearing on notice to the State or other interested party; any such dismissal prevents the accused from invoking the benefit of section 439(6).

It was observed that it makes no difference whether the High Court rendered a judgment of dismissal in an appeal or in a revision, nor whether that dismissal was effected summarily or after a full hearing conducted on notice to the State or any other interested party. The authorities cited in support of this proposition include the following reports: (1) [1931] I.L.R. 10 Pat. 872; (6) A.I.R. 1933 All. 485; (2) A.I.R. 1927 Bom. 666; (7) A.I.R. 1942 All. 339; (3) A.I.R. 1936 Sind 233; (8) I.L.R. [1952] 2 Raj. 716; (4) I.L.R. [1945] All. 527; (9) A.I.A. 1925 Mad. 993; (5) [1930] I.L.R. 54 Bom. 822; (10) [1927] I.L.R. 8 Lah. 521. The effect of such a dismissal, whether by appeal or by revision, is to prevent the accused from availing himself of the benefit conferred by section 439(6) of the Code of Criminal Procedure.

In two decisions, namely Emperor v. Lukman (1) and Emperor v. Shidoo (2), the Sind Court adopted a middle-ground approach. The Court held that an accused whose appeal had been dismissed, whether summarily or after a full hearing, could not challenge his conviction a second time except where the conviction was not based on legal evidence or was manifestly erroneous. In other words, the scope of any further challenge was limited to what is ordinarily permissible in a revision. The present author regarded these two decisions as illogical and felt no further comment on them was necessary.

The remaining authorities previously mentioned have been clear and unequivocal. They hold that when an appeal or a revision application has already been dismissed—whether summarily or after a full hearing—the accused, even if called upon to show cause why the sentence should not be enhanced, is not entitled to question the correctness of his conviction for a second time. The earlier dismissal, according to these decisions, constitutes a final adjudication by the High Court on the correctness of the conviction. Under the doctrine of finality of judgment embodied in sections 369 and 430 of the Code of Criminal Procedure, such adjudication cannot be reopened under section 439(6).

Several cases—Crown v. Dhanna Lal, Emperor v. Inderchand and King v. Nga Ba Saing—have pointed out that subsection (6) begins with the words “notwithstanding anything contained in this section” and not with “notwithstanding anything contained in this Code”. From this phrasing it is inferred that subsection (6) operates notwithstanding the provisions of subsection (5) but cannot override the other provisions of the Code. Consequently, the operation of subsection (6) is conditioned and controlled by the principle of finality of judgment as expressed in sections 369 and 430.

Some learned judges have expressed the view, relying on In re Saiyed Anif Sahib and Crown v. Dhanna Lal, that the words “unless he has already done so” in section 439(6) must be read in light of the presumption of finality. In a few other decisions, such as Emperor v. Sher Singh and Ram Lakhan v. Emperor, the judgment has been founded also on the ground of the inherent incapacity of a High Court judge to revisit the decision of another judge of the same Court.

In this case the Court observed that the law did not permit a Judge of the High Court to revisit the decision made by another Judge of the same Court, and therefore it was necessary to examine the ground relied upon for this proposition with some care to determine whether it was valid. To understand the true meaning and the precise scope of sections 369 and 430, on which the argument of finality of judgment was founded, the Court considered the overall structure of the Criminal Procedure Code. The Code was divided into parts, and Part VI dealt with “Proceedings in Prosecutions”. Within Part VI, Chapter XV set out the jurisdiction of the Criminal Courts in inquiries and trials. The Court noted that it would pass over Chapters XVI to XVIII and then describe Chapter XIX, which prescribed the rules for framing and joinder of charges. Chapters XX to XXIII dealt respectively with different kinds of trials, namely trials of summons cases, warrant cases, summary trials and trials before High Courts and Courts of Session. Chapter XXIV contained general provisions relating to inquiries and trials, while Chapter XXV provided the mode of taking and recording evidence. After these, Chapter XXVI was headed “Of the Judgment”, and section 369 was one of the provisions included in this chapter. Chapter XXVII dealt with the submission of death sentences for confirmation by the High Court, and Chapters XXVIII and XXIX contained rules concerning execution, suspension, remission and commutation of sentences. Part VI concluded with Chapter XXX, which the Court said was not material to the present discussion.

Part VII of the Code concerned “Appeal, Reference and Revision”. Chapter XXXI was concerned with appeals, and within that chapter section 430 was found. Chapter XXXII dealt with reference and revision, and section 439 was one of the provisions contained in that chapter. In view of the scheme outlined above, the Court held that there could be no doubt that the provisions collected in Chapter XXVI were intended to relate to judgments pronounced by the trial Court. This conclusion was reinforced by the language of several sections in that chapter. For example, section 366, the first section of the chapter, referred to “the judgment in every trial in any Criminal Court of original jurisdiction”. Section 367 specified what must be contained in “every such judgment”, meaning again a judgment in an original trial. Section 369 read in full as follows: “Court not to alter Judgment – Save as otherwise provided by this Code or by any other law for the time being in force or, in the case of a High Court by the Letters Patent or other instrument constituting such High Court, no Court, when it has signed its judgment, shall alter or review the same, except to correct a clerical error.” The opening words “save as otherwise provided by this Code…constituting such High Court” had been inserted by section 119 of the Amending Act XVIII of 1923 and were later adapted by the Adaptation of Laws Order, 1950. The Court concluded that the finality embodied in this section applied only to the Court that pronounced the judgment, because the provision expressly forbade that Court, after signing its judgment, to alter or review it, except for clerical correction.

Section 369 of the Code provides that once a court has signed its judgment it may not alter or review that judgment. In practical terms, the ruling means that after a judgment is pronounced the court that delivered it becomes functus officio. The wording of the Code itself shows that the intention of section 369 is not to create a universal rule of finality for every judgment of every criminal court, but rather to impose finality only on the judgments of trial courts as far as those courts are concerned. It is clear that section 369 does not, by its own terms, extend to the judgments of appellate courts. If it did, there would have been no need to enact section 424, which expressly makes the rules of Chapter XXVI – the chapter containing section 369 – applicable to the judgments of any appellate court other than the High Court, nor would there have been a need to prescribe, by section 430, a separate rule of finality for judgments and orders passed by an appellate court. Consequently, while the finality guaranteed by section 369, subject to the other provisions of the Code, any other law, and the Letters Patent, binds the judgments pronounced by all trial courts – including the High Court when it sits in original criminal jurisdiction – it has no effect on the finality of appellate judgments, a matter that is specifically governed by section 430 of the Code. Moreover, the finality rule in section 369 cannot be read to apply to orders issued by the High Court in its revisional jurisdiction, because section 442, which requires the result of revision proceedings to be certified to the court that recorded the original finding, sentence or order, refers to such result as a “decision or order” and not as a “judgment”. It is noteworthy that section 425, which requires the result of an appeal to be certified to the lower court, describes it as a “judgment or order”. These distinctions make it clear that section 369 does not control the provisions of section 439(6). Since section 369 is expressly “subject to the other provisions of the Code”, it follows that section 439(6) must be treated as one of those other provisions. The phrase “subject to the other provisions of the Code, etc.” was inserted into section 369 at the same time that sub-section (6) was added to section 439. The newly added sub-section creates a substantive statutory right for the individual concerned, and the right must be given full effect unless an insurmountable difficulty arises. If section 369 were to be interpreted in the broadest possible manner – that it applies to all judgments of all courts, whether original, appellate or revisional – that interpretation must be narrowed by the qualifying words “subject to the other provisions of the Code”.

In the analysis, the Court held that the mandatory provision of section 439(6) must be interpreted as controlling section 369 rather than the reverse. Consequently, the Court read section 369, which is described as “subject to the other provisions of the Code,” as being subject to section 430. The finality principle embodied in section 430 does not apply to decisions or orders made in revision because Chapter XXXII of the Code is expressly excepted from its operation. Therefore, even if the rule of finality in section 369 were given a broad construction, it could not affect cases that fall within Chapter XXXII. The Court then turned to section 430, which is also relied upon as furnishing a principle of finality that is intended to control the operation of section 439(6). Section 430, by its terms, applies only to “judgments and orders” issued by an appellate court and has no application to “decisions or orders” issued by a High Court in revision. It has been argued that the exception in section 430 for cases covered by Chapter XXXII merely exempts judgments or orders of an appellate court other than a High Court from the finality rule, because those judgments are revisable by the High Court under section 439(1). However, section 439(1) does not contemplate or permit judgments or orders made by the High Court in the exercise of its original or appellate criminal jurisdiction to be revised by the High Court itself. As a result, appellate judgments or orders of the High Court cannot, under section 439(1), become the subject-matter of any revision application. Consequently, such appellate judgments or orders did not fall within the exception created by section 430 and remained subject to the finality rule contained in that section.

The Court identified two possible answers to the difficulty. The first answer considered that the effect of the newly added subsection (6) to section 439, as previously explained, is to confer a fresh statutory right on an accused person notwithstanding anything contained in section 439(1). In other words, if subsection (6) is read, as the Court believes it should be, as a provision that expressly makes the judgment, decision, or order of the High Court passed in the exercise of its appellate or revisional jurisdiction subject, for the purpose of protecting an accused whose appeal or revision has already been dismissed, to re-examination by the High Court when the accused later faces an application for enhancement of sentence, then that judgment, decision, or order becomes, by operation of section 439(6), the subject-matter of a case provided for in Chapter XXXII of the Code. Accordingly, the scope of Chapter XXXII has been enlarged by the addition of subsection (6) to section 439, and the scope of the exception to section 430 must also be enlarged to include, within the exception, whatever falls within Chapter XXXII after the amendment of section 439. Thus, cases that now come within Chapter XXXII are to be treated as free from the finality rule embodied in section 430.

In this case, the Court observed that the provisions contained in Chapter XXXII must be exempt from the rule of finality embodied in section 430. The Court pointed to two decisions of the Allahabad High Court—Emperor v. Abdul Qayum and Ram Chand Hiralal—where it had been held that section 430, by its own terms, preserves the High Court’s revisional power to enhance a sentence. In both of those cases, the accused’s jail appeal had been dismissed summarily by the High Court. The Court reasoned that if the rule of finality of appellate judgments does not apply to such a summary dismissal, thereby allowing the State to invoke its revisional power to increase the sentence, then the accused’s right to be shown cause against his conviction under section 439(6) — a right that arises only when an order for enhancement is issued under section 439(2) and is therefore part of the revisional proceedings for enhancement — must, by the same reasoning, be free from the principle of finality. Consequently, the Court concluded that section 434(6) is not, in terms, governed by section 369 or section 430. Whether the subsection is subject to the general principle of finality of judgments, and to what extent, were noted as questions to be addressed later.

The Court then turned to the second line of argument that some decisions rely upon, namely the alleged inherent incapacity of one High Court judge to reconsider a decision of another High Court judge. The Court rejected this theory, stating that it must yield to the statutory authority conferred by section 439(6). The Court explained that when a statute expressly or by necessary implication vests jurisdiction and power in a particular judge or bench, the doctrine of inherent incapacity cannot be used to bar the exercise of that jurisdiction simply because the new decision might conflict with an earlier decision made by a different judge or bench exercising a different jurisdiction. The Court saw no reason why section 439(6) could not be read as a provision that, by necessary implication, enables the High Court to re-examine its own earlier order when certain contingencies occur, specifically when an accused whose appeal or revision has been dismissed faces a risk of sentence enhancement and a notice of enhancement is issued to him.

Finally, the Court noted that some authorities had argued that section 439(6) is controlled by sections 369 and 430, and had cited section 423(2) as limiting the right under section 439(6). The Court observed that even if section 439(6) is subject to section 423(2), that limitation does not determine the circumstances in which the right under section 439(6) may be exercised, and it does not affect the discussion of finality of judgments raised by sections 369 and 430.

The Court noted that judges had expressed divergent views on the effect of convictions obtained in a jury trial, but it declined to pronounce on that issue at the present stage and reserved the right to revisit the question if a suitable occasion arose in the future. It further observed that even if section 439(6) were subject to the limitations of section 423(2), such control did not clarify the precise moments or circumstances in which a party could invoke the right conferred by section 439(6). In any event, the Court held that this consideration did not affect the argument concerning the finality of judgments that was founded upon sections 369 and 430. To illustrate the point, the Court referred to the decision of a Full Bench of the Lahore High Court in Emperor v. Atta Mohammad [1943] I.L.R. 25 Lah. 391, and proceeded to examine the reasoning adopted by the learned judges comprising that Full Bench. In the Lahore case, the accused’s revision application had been dismissed in limine by the High Court, after which the Crown applied for an enhancement of sentence and issued a notice under subsection (2) of section 439; the accused then invoked subsection (6) to show cause against his conviction despite the earlier dismissal of his revision petition. The Crown’s counsel relied on earlier authorities and contended that the High Court’s dismissal of the revision application was final with respect to the correctness of the conviction, that the order could not be revisited, that the accused was consequently barred from challenging his conviction, and that the fact of a dismissal in limine was irrelevant to the present application. The Full Bench overruled the earlier decision in Crown v. Dhanna Lal and held that, in the circumstances of the case, the accused remained entitled to show cause against his conviction notwithstanding the prior dismissal of his revision petition. Justice Blacker summarised the reasoning by stating that an order dismissing a revision petition in limine is made under section 435 rather than under section 439, and therefore such an order does not constitute a judgment to which the principle of finality embodied in section 369 applies, because the dismissal merely indicated that the judge had found no sufficient grounds disclosed in the petition or apparent on the face of the judgment for proceeding further. He further explained that, in the expressive language of the learned judge, a dismissal “contains no finding or decision unless it can be called a decision to decide to come to no decision.” Moreover, Justice Blacker observed that the jurisdiction exercised by the court under section 439(6) was appellate in nature, and that an order of acquittal under that subsection did not amount to a review of an order of dismissal made under section 435. Finally, it was concluded that the order of dismissal under section 435 was not a judgment, and therefore the subsequent order of acquittal under section 439(6) did not constitute a review of a judgment that would be barred by section 369.

In that decision, the Court held that if an order made under section 435 were considered a judgment, or if an order of acquittal made under section 439(6) were treated as a review of such a judgment, the review would not be barred by section 369 because the saving provisions at the beginning of section 369 would apply. The judgment written by Mahajan, J., who at that time was the senior judge, emphasized that the amendment of 1923 introduced section 439(6) which gave the accused a new and unrestricted right to question the legality or propriety of his conviction. He observed that the judge hearing an application for enhancement of sentence must examine the factual record to determine whether the conviction was correct, and that the exercise of revisional jurisdiction was merely a matter of discretion; consequently, a dismissal in limine of such an application amounted only to a refusal to examine the record and could not be described as a judgment. Ram Lall, J. did not write a separate opinion but concurred generally with the reasoning of the other judges. The Lahore High Court decision was based principally on two propositions: first, that a dismissal of a revision petition in limine involves no finding or decision and is simply a refusal to send for the records or to consider the matter, and therefore does not constitute a judgment; second, that section 439(6) provides a newly created statutory right for the accused to challenge the legality or propriety of his conviction even when a prior revision petition has been dismissed in limine, and that such a review is not barred by section 369 because of the saving clause at the start of that section. The Full Bench expressly chose not to express any view on how the dismissal of an appeal would affect the right created by subsection (6). The principle articulated in the first ground of the Lahore Full Bench decision was later extended by the Rajasthan High Court in State v. Bhawani Shankar. In that case, Chief Justice Wanchoo held that an accused whose jail appeal had been summarily dismissed was in the same position as one whose revision petition had been dismissed in limine, because neither had been given an opportunity to show cause against the conviction. However, the Chief Justice did not wish to go further, and expressed the view that if an appeal were dismissed after the party or counsel had been heard, the accused could not claim a second opportunity to challenge the conviction under section 439(6), since the hearing itself constituted an opportunity to show cause. Earlier decisions such as Emperor v. Jorabhai and subsequent cases had stated that, for the purpose of applying section 439(6), it made no substantive difference whether the proceeding dismissed was an appeal or a revision, or whether the dismissal was summary or after a full hearing, and that in none of those situations could the accused claim a second chance to question the conviction when later called upon to justify an enhanced sentence.

The Court observed that for the purposes of section 439(6) it made no difference in principle whether the proceeding filed by the accused and subsequently dismissed was an appeal or a revision, and whether the dismissal was summary or after a full hearing. In none of those situations could the accused claim a second opportunity to question the legality or propriety of his conviction when later called upon to show cause why the sentence imposed on him should not be enhanced. The Court noted, however, that in the Lahore Full Bench case and in the Rajasthan case previously mentioned, a distinction had been drawn between a summary dismissal and a dismissal after a full hearing of the appeal or revision filed by the accused. In the present judgment the Court held that there is a substantial distinction between these two modes of dismissal as to the effect they have on the rights of accused persons, and it proceeded to explain that distinction. The Court further stated that it could not accept the argument advanced by the Lahore Full Bench that a summary dismissal of a revision application filed by the accused should be treated as an order made under section 435 rather than under section 439, that such a summary dismissal amounted merely to a refusal by the High Court to consider the application, and that no finding or decision was ever made in such a dismissal. Even less could the Court agree with the proposition that a summary dismissal of a jail appeal stood on the same footing. The Court affirmed that sections 421, 435 and 439 unquestionably confer a very wide discretion on the Court. It quoted Lord Halsbury, L.C., in Sharp v. Wakefield (1), stating that discretion means “sound discretion guided by law”. The Court explained that such discretion must be governed by rules of reason and justice, not by private opinion; it must be exercised according to law and not by humour or caprice, and it must not be arbitrary, vague or fanciful but must be legal and regular. This discretion is given to the High Court for the purpose of dealing with and disposing of the proceeding brought before it, not for avoiding a decision. The primary and paramount duty of the Court, the judgment stressed, is to decide the appeal or revision, and it must exercise its discretion in the performance of that duty. In exercising that discretion the High Court may select which of its powers to use if the circumstances of the case require such a choice. Where the case is clear on the grounds of appeal or revision, or on the face of the judgment appealed from or sought to be revised, the Court may conclude that the case lacks merit and does not warrant the exercise of any of its powers, and therefore may dismiss it summarily. However, if the Court harbours any doubt, it may call for the record, admit it, issue notice to the respondent and decide the matter after a

In this case the Court explained that even when an appeal is to be heard in a full hearing before all parties, the matter must nevertheless be decided at some stage. The discretion that is given to the High Court does not permit it to refuse to consider the appeal or revision at all. The Court’s primary duty is to examine the appeal or revision and to reach a decision, although it enjoys very wide discretion in how it arrives at that decision. When the High Court dismisses an appeal summarily—whether it does so without hearing the accused or the accused’s pleader, as may happen in a jail-appeal, or whether it hears the accused or the pleader but does so before giving any notice to the respondent, as occurs when the appeal is presented by the accused or his pleader—the Court is still deciding the appeal. The Court stressed that it would be a grave error to contend that sections 421, 435 or 439 give the Court a discretion to decline to decide an appeal or revision that has been brought before it, and it refused to entertain or encourage such a view. In the judgment the Court held that a summary dismissal of an appeal or revision constitutes an adjudication by the High Court in the same manner as a dismissal after a full hearing. The only distinction, as the Court later set out, relates to the nature, scope and effect of the two types of adjudication. It has been suggested that when an appeal or revision is dismissed after a full hearing, the judgment of the lower court merges into the High Court’s judgment, thereby replacing the lower-court judgment as the sole operative decree. Conversely, it has been argued that a summary dismissal does not produce any finding or decision capable of replacing the lower-court judgment. On that basis some have asserted that a petition under sub-section (6) cannot be entertained in the first situation because it would amount to revising the High Court’s decision, whereas the same petition would be permissible in the second situation where the dismissal was summary. The Court found that argument to be untenable and fallacious. The Court then referred to section 425 of the Code, which mandates that whenever a case is decided on appeal by the High Court under Chapter XXXI, the High Court must certify its judgment or order to the court that recorded or passed the original finding, sentence or order, and that court must thereafter make such orders as conform to the High Court’s judgment or order, amending the record if necessary. Similarly, section 442 requires that when a case is revised under Chapter XXXII by the High Court, the High Court must, in the manner prescribed by section 425, certify its decision or order to the court that recorded or passed the original finding, sentence or order, and that court must thereafter make such orders as are conformable to the certified decision.

In this matter the Court explained that the certificate required by section 425 is issued for every appeal or revision, irrespective of whether the matter is disposed of summarily or after a full hearing. The certificate accompanies the judgment or order of the High Court and, if necessary, directs that the record be amended in accordance with the High Court’s decision. When an appeal or revision is heard after giving notice to the respondent and the High Court allows the appeal, either in whole or in part, it becomes immediately apparent that the judgment or order that was appealed against has been altered by the High Court’s decision, and the record is annotated to reflect that alteration. By contrast, when an appeal or revision is heard after full notice and the High Court dismisses it, leaving the original sentence unchanged, the outward appearance of the record does not change when the certificate is sent, yet the High Court has nonetheless rendered an adjudication. In such a dismissal the High Court’s judgment amounts to a confirmation of conviction, whereas in an appeal that results in an acquittal or a reduction of sentence the High Court’s judgment is one of acquittal or mitigation. The Court further observed that when an appeal or revision is dismissed summarily, the dismissal upholds the lower Court’s judgment or order, a note of the dismissal is entered in the record, and, for legal purposes, the High Court’s judgment is the prevailing authority. Although an untrained observer might find the change more obvious in a case where the judgment is altered than in cases of dismissal, the Court stressed that, in principle, there is no distinction among the three situations. The Court found no reason to hold that a merger or replacement of judgment occurs only in the first two categories and not in a summary dismissal; in all three circumstances a judgment of the High Court exists. The argument was raised that if a summary dismissal constitutes a judgment, then the rule of finality contained in sections 369 and 430 would apply, potentially allowing an accused to file a weak appeal or revision, obtain a summary dismissal, and thereby prevent the State or any other interested party from seeking an enhancement of the sentence. The Court dismissed this apprehension as unfounded for several reasons. It noted that when an accused files an appeal or revision, the pleadings set out detailed grounds challenging both conviction and sentence, and the accused does not, by nature, raise any issue of sentence enhancement. At that stage, no notice or rule authorising an enhancement has been issued, and the respondent is not before the Court to raise such an issue. Consequently, a summary dismissal merely confirms the conviction and indicates that the Court finds no basis for reducing the sentence; it does not constitute a decision that the sentence should not be enhanced, because the question of enhancement was never before the Court.

It has been correctly observed in several authorities, for example In re Syed Anif Sahib (supra), Emperor v. Jorabhai (supra) and Emperor v. Inderchand (supra), that when the High Court dismisses an appeal or revision summarily without issuing a notice under section 439(2) to the accused for showing cause against enhancement, this clearly shows that the High Court has not entertained the question of enhancement. The rule of finality prescribed by section 430 does apply to the appellate judgment of the High Court, subject to the exception for cases falling within Chapter XXXII. Although the revisional power of the High Court is not expressly provided for in either section 369 or section 430, the general principle of finality of judgments likewise attaches to any decision or order made by the High Court while exercising its revisional powers. However, such finality, whether statutory or based on common law, extends only to matters that the High Court has actually decided and to nothing beyond that. When an appeal or revision filed by the accused is allowed after a full hearing on notice to the respondent, the conviction and the sentence are then considered to have been fully raised and finally decided. In that situation, if the accused, in the presence of the State, seeks an acquittal or a reduction of his sentence, the State must at the same hearing apply for an enhancement of the sentence; failure to do so amounts to an abandonment of that claim. Acceptance by the High Court of the appeal or revision on notice after a full hearing therefore constitutes, in effect, a judgment of acquittal or a judgment for reduction of the sentence. Conversely, a dismissal by the High Court of an appeal or revision after such a full hearing amounts to a judgment of conviction. In both circumstances the judgment is final as to both the accused and the respondent regarding the conviction as well as the sentence, whether the issue is reduction or enhancement. Consequently, no further revision can be sought by either party. The accused cannot file another application challenging his conviction or sentence, and the State cannot later apply for enhancement of the sentence because that issue should have been raised at the hearing when the accused pleaded for acquittal or reduction; once it has not been raised, it cannot be revived later, and therefore no question arises for the exercise of the accused’s right under section 439(6). This outcome is not based on any technical doctrine of constructive res judicata, which does not apply to criminal cases, but on the overarching principle of finality of judgments. The summary dismissal of an appeal or revision by the accused, whether or not the accused or his pleader is served, but without issuing notice to the respondent, is, so far

In this case the Court explained that once a judgment of conviction and confirmation of sentence had been entered against the accused, the accused could no longer file a revision petition challenging either the conviction or the sentence. The Court said that such a judgment became a final judgment as against the accused, because otherwise the accused would be able to continue making successive appeals or revision applications, which the law does not permit. However, the Court noted that the State or any other interested person who had not been served with notice of the appeal or revision could not be barred, by the summary dismissal of the accused’s appeal or revision, from seeking an enhancement of the sentence. The Court reasoned that when the State or the complainant was not present, the question of enhancement had not been raised before the Court, and therefore the summary dismissal could not be treated as a determination on that issue. Since the question of enhancement had neither been put in issue nor decided by the High Court, the finality attached to the summary dismissal as against the accused did not affect the State’s ability to pursue enhancement.

The Court identified what it considered the true distinction between a summary dismissal of an appeal or revision and a dismissal after a full hearing. It held that the earlier decisions in Emperor v. Jorabhai and the cases that followed had overlooked this important distinction and had failed to consider the effect of the new statutory right conferred on the accused by section 439(6). Consequently, those decisions could not be treated as correct authority. The Court further explained that where an appeal or revision filed by the accused had been dismissed after a full hearing in the presence of the State, and where no application for enhancement of the sentence had been made by the State or any other interested party during the pendency of that appeal or revision, the dismissal should be regarded as a judgment final as against both parties on both matters—conviction and sentence. In such circumstances, no further application for enhancement could be entertained and the accused would have no further opportunity to show cause against his conviction.

Conversely, the Court held that where the accused’s appeal or revision had been summarily dismissed without giving notice to the respondent, the dismissal, although final as against the accused, did not prevent the State or the complainant—who were not parties to the dismissal—from filing an application for enhancement of the sentence. The Court explained that once such an application for enhancement was made and a notice was issued to the accused, the accused, fearing that his sentence might be increased, became entitled under section 439(6) to show cause not only against the proposed enhancement but also against his conviction. Finally, the Court referred to the Lahore Full Bench decision, which had held, inter alia, that the dismissal of the accused’s revision application in limine did not bar the State from later applying for enhancement of the sentence, and that section 439(6) gave the accused a fresh right to challenge his conviction when a notice for enhancement was served upon him.

In this case the Court examined whether a person who had his revision or appeal dismissed could later invoke the right under section 439(6) of the Criminal Procedure Code to show cause against his conviction when a notice for enhancement of sentence was issued to him. The Court said that the portion of the earlier decision which upheld the view that a notice of enhancement creates a fresh right to contest the conviction could be sustained, but the Court could not accept the view that the accused in that earlier case possessed a second right because the summary dismissal of his revision was not a judgment at all or was not final even as to him. The Court further observed that the decision of the Rajasthan High Court, which extended the same principle to the dismissal of a jail-appeal without hearing the accused or his pleader under section 421, may also be supported on the ground previously mentioned. The Court cited a Bench of the Lahore High Court in The Crown v. Ghulam Muhammad (1), which held that where the accused’s revision application had been dismissed after notice to the respondent and after a full hearing, and the State subsequently applied for enhancement of sentence, the accused could again show cause against his conviction. With respect, the Court considered that a better reasoning would have been to state that such a dismissal of the revision after a full hearing constituted a final judgment against both parties on both the conviction and the sentence, and that, because the State had not applied for enhancement during the pendency of that revision, after the dismissal – which had become a final judgment – the State possessed no subsequent right to apply for enhancement of sentence. Consequently, no notice under section 439(2) could be issued and the accused could not invoke the right under section 439(6). The Court, however, held that the summary dismissal of the appeal filed by the appellant in the High Court was a judgment of conviction by that Court and was final as far as the appellant was concerned; therefore the appellant could not initiate any further revision either to challenge his conviction or to seek reduction of sentence after that dismissal. At the same time, the Court found that the dismissal was not final as to the State, which remained entitled to apply in revision for enhancement of sentence. Accordingly, the Court held that once the State applied for enhancement and a notice was issued to the appellant, the appellant became entitled under section 439(6) to again challenge his conviction. The Court explained that this sub-section provides a new and valuable defence to an accused who is placed in fresh jeopardy by the filing of an enhancement application and the issuance of a notice to show cause. The Court found no provision in sections 369 or 430 that would limit that right. The earlier dismissal of the appellant’s appeal had no effect on the new situation created by the enhancement application, which the Legislature, by enacting section 439(6), must have regarded as sufficiently serious to require a thorough re-examination by the High Court of the conviction itself in this new context.

In this case, the Court observed that there was no principle that should stop section 439(6) of the Criminal Procedure Code from granting a fresh right to an accused whose appeal or revision had been summarily dismissed, to defend himself by challenging his conviction when a notice for enhancement was issued. After considering the earlier discussion, the Court concluded that the appeal must be allowed and the matter should be returned to the High Court so that the State’s application for enhancement could be dealt with in accordance with the law, after giving the appellant an opportunity to show cause against his conviction. The judgment was delivered by Justice Bhagwati, joined by Justice Imam. The appeal, filed on a certificate under article 134(1)(c) of the Constitution, raised the important question of whether a convicted person could show cause against his conviction while also being required to show cause why his sentence should not be enhanced under section 439(6). The appellant had been charged before the Presidency Magistrate, 13th Court, Bombay for an offence punishable under section 66(b) of the Bombay Act XXV of 1949, as he was found in possession of one bottle of Mac Naughtons Canadian Whisky containing eight drams valued at rupees twenty. The Magistrate convicted him, sentencing him to imprisonment until the rising of the Court and imposing a fine of rupees 250, with default rigorous imprisonment for one month. The appellant filed a petition of appeal to the High Court of Judicature at Bombay through counsel, but the High Court dismissed the appeal summarily after hearing counsel on 19 January 1953. Subsequently, on 18 May 1953 the State filed a criminal revision application seeking enhancement of the sentence, and a rule was granted by the Vacation Judge on 12 June 1953. The rule was heard and finally disposed of before a Division Bench of the High Court on 26 August 1953. After hearing the Government Pleader, the Court was not satisfied that there were grounds for enhancement. The appellant’s counsel then sought to argue for acquittal based on section 439(6). Relying on the decisions of the Bombay High Court in Emperor v. Jorabhai, Emperor v. Koya Partab, and Emperor v. Inderchand, the Court refused to permit the counsel to argue that the conviction order itself could not be sustained. Consequently, the application for enhancement was dismissed and the rule discharged. The appellant applied for leave to appeal to the Supreme Court on 15 October 1953. The Division Bench of the High Court, hearing the application, framed the point for determination as follows: “Whether a summary dismissal of an appeal preferred by an accused person precludes him from taking advantage of the provisions of section 439(6) of the Criminal Procedure Code, when he is subsequently called upon to show cause why the sentence imposed upon him should not be enhanced.”

The Court observed that the position consistently adopted by the Bombay High Court in this matter had been endorsed by the Allahabad and the Patna High Courts in the cases of Emperor v. Naubat (4) and Ramlakhan Chaudhury v. Emperor (1). Although the Lahore High Court’s view in Emperor v. Atta Muhammad (1) did not directly address the precise point, it nevertheless gave some prima facie support to the argument raised by the counsel for the appellant. Consequently, the Court granted a certificate indicating that the case was fit for appeal before this Court.

The Court then set out the relevant provisions of the Criminal Procedure Code that would be examined. Section 417 authorises an appeal by the State Government to the High Court against any original or appellate order of acquittal issued by a court other than a High Court. Sections 419, 420, 421, 422 and 423 prescribe the procedures governing appeals. Section 419 deals with petitions of appeal filed by the appellant or his pleader, while Section 420 concerns petitions of appeal filed when the appellant is in custody. Section 421 provides that the appellate court may summarily dismiss an appeal if it finds no sufficient ground for interference, but it must not dismiss an appeal presented by the appellant or his pleader unless the appellant or his pleader has been given a reasonable opportunity to be heard. Before a summary dismissal, the court may, though it is not bound to, call for the case record. If the appellate court does not dismiss the appeal summarily, Section 422 requires that notice of appeal be given to the appellant or his pleader, or to an officer appointed by the State Government for that purpose. Section 423 delineates the powers of the appellate court in dismissing the appeal; the only provision relevant to the present case is that, in an appeal from a conviction, the appellate court may alter the nature of the sentence, with or without reducing it, but it may not enhance the sentence. Section 430 incorporates the rule of finality concerning judgments and orders passed by an appellate court on appeal, except where section 417 applies to appeals on behalf of the Government in cases of acquittal, and except for matters covered by Chapter XXXII relating to reference and revision. Finally, Section 435 concerns the revisional powers of the High Court to call for the records of inferior criminal courts in order to ascertain the correctness, legality or propriety of any finding, sentence, order or the regularity of proceedings of such inferior courts.

The revisional jurisdiction allows a higher court to examine the records of inferior criminal courts in order to determine whether any finding, sentence, or order was correct, legal, proper, and whether the proceedings were regular. Section 438 authorises the lower appellate court to refer a case to the High Court with a recommendation that a sentence imposed on a convicted person be reversed or altered. Section 439, which is presently relevant, stipulates that when a proceeding’s record is called for by the High Court itself, reported for orders, or otherwise comes to its notice, the High Court may, at its discretion, exercise any of the powers conferred on a Court of Appeal by sections 423, 426, 427 and 428, or on a Court by section 338, and may also enhance the sentence. If the judges forming the Court of Revision are evenly divided in opinion, the matter shall be disposed of in the manner prescribed by section 429. Sub-section (2) of section 439 provides that no order under this section shall prejudice the accused unless he has been given an opportunity to be heard, either personally or through counsel, in his defence. Sub-section (5) declares that where the Code provides a right of appeal and no appeal is filed, the court shall not entertain any revision proceedings initiated by the party who could have appealed. Sub-section (6) adds that, notwithstanding the foregoing, any convicted person who is given an opportunity under sub-section (2) to show cause why his sentence should not be enhanced may also, in the same proceeding, show cause against his conviction. Section 440 states that no party has an automatic right to be heard before any court exercising its revisional powers, although the court may, if it deems appropriate, hear any party personally or through counsel, and this provision does not affect the requirement of section 439(2). A person convicted of an offence may file in the High Court either a petition of appeal or an application for revision challenging both the conviction and the sentence awarded. The petition of appeal may be presented by the convicted person while in jail, or may be filed in person at the High Court or through his counsel. Similarly, an application for revision may be presented to the High Court by the convicted person either in person or through counsel. After examining the petition of appeal, the High Court may summarily dismiss it if it finds no sufficient ground for interference, provided that it first gives the petitioner or his counsel a reasonable opportunity to be heard and, where appropriate, calls for the case record. If the court does not dismiss the petition summarily, it may issue a notice of appeal to the opposite party.

The appeal would proceed to a full hearing before both parties only if the High Court refrains from summarily dismissing the appeal. In the case of an application for revision, the High Court likewise may dismiss it summarily without hearing either the accused personally or through counsel. However, where the Court decides to issue a notice to the opposite party, it must conduct a full hearing with the presence of both parties. Such proceedings ordinarily focus on whether the conviction can be upheld and whether the sentence imposed on the convicted person should be set aside or reduced. These matters do not involve any consideration of increasing the sentence. The issue of raising the sentence arises solely when the High Court, exercising its revisional jurisdiction under section 439(1), deems it necessary to issue a notice of enhancement to the convicted individual.

Though the Court exercising revision is not required to hear either party personally or through counsel, it cannot impose a sentence enhancement that prejudices the accused unless he has been given an opportunity to be heard in his defence. Consequently, at the same time the accused receives a notice under sub-section (2) to show cause why his sentence should not be enhanced, he is also entitled, by virtue of section 439(6), to show cause against his conviction. The right to contest the conviction may arise in four distinct situations. First, where the petition of appeal has been summarily dismissed, either without any hearing or after a hearing of the accused or his counsel as the circumstances require. Second, where the appeal has been dismissed after a full hearing following the issuance of a notice of appeal to the opposite party. Third, where the application for revision has been summarily dismissed, either without a hearing or after the accused or his counsel has been heard. Fourth, where the application for revision has been dismissed after a full hearing that occurs after a notice has been issued to the opposite party. When the High Court issues a notice for enhancement of sentence, it is acting under its revisional jurisdiction, and the question for consideration is whether, in any of the aforesaid situations, the Court possesses authority to issue such a notice and whether the convicted person may simultaneously show cause against the enhancement and against the conviction itself. The Bombay High Court has held that in all four categories the accused has already been afforded an opportunity to show cause against his conviction and therefore is not entitled to a further, separate opportunity to do so.

In the present matter the Court observed that the requirement for the accused to show cause why his sentence should not be enhanced was applied without drawing any distinction between the High Court’s exercise of appellate jurisdiction and its exercise of revisional jurisdiction. Similarly, the Court did not differentiate between appeals or revision applications that were dismissed summarily, dismissed at the outset, or dismissed after a full hearing in the presence of both parties. The same principle was extended to a reference made under section 438 and to an order passed by the High Court on that reference, which read “No order on reference”, even though the applicant on whose behalf the Sessions Judge made the reference had not been given notice. The Bombay High Court’s view, as articulated in the cases earlier cited, was therefore applied uniformly. The Allahabad High Court and the Patna High Court have followed this Bombay High Court position in the decisions mentioned, and the Lahore High Court initially adopted the same approach in Emperor v. Dhanalal. However, that Lahore decision was later overruled by a Special Bench of the same Court in Emperor v. Atta. The Special Bench held that the High Court’s revisional jurisdiction is wholly discretionary and that an application for revision is entertained merely as a matter of favour. Consequently, no party is entitled to be heard, either personally or through counsel, when the Court exercises its revisional jurisdiction. Accordingly, a dismissal of a revision application at the outset constitutes a refusal by the Court to exercise its revisional jurisdiction, and the convicted person, in such circumstances, is entitled while showing cause why his sentence should not be enhanced, also to show cause against his conviction. The Special Bench went further to declare that section 439(6) confers upon the convicted person an unfettered and unlimited right to show cause against his conviction, a right that cannot be withdrawn unless there exists a judgment in rem, which alone would bar a decision on the same matter when it arises in the exercise of what is essentially ordinary appellate jurisdiction. The Rajasthan High Court, in State v. Bhawani Shankar, distinguished cases where the accused had not been heard at all and had been denied any opportunity to show cause against his conviction—such as a jail-appeal dismissed under section 421 or a revision application dismissed without hearing—from cases where the accused had already been heard and given an opportunity to show cause, whether in appeal or revision, and whether the dismissal was summary or on the merits. The Court held that in the former category the accused is entitled to request that the Court hear him and thereby permit him to show cause against his conviction under section 439(6) if a notice of enhancement is issued. The principle of finality of criminal judgments was also noted in relation to this issue.

In this case, the Court referred to the principle that had been recognised in Janardan Reddy & Others v State of Hyderabad & Others, reported in 1943 I.L.R. 25 Lah. 391 and in 1952 I.L.R. 2 Rajasthan 716 at page 367, where Justice Fazl Ali observed that there is no doctrine of constructive res judicata in criminal matters, but that a doctrine of finality of judgments exists and applies to both criminal and civil cases, being implicit in any legal system that provides mechanisms for correcting errors on appeal or by revision. He explained that Section 430 of the Criminal Procedure Code expressly embodies this principle by declaring that judgments and orders passed by an appellate court on appeal shall be final, except in the circumstances enumerated in Section 417 and Chapter XXXII. Section 417 concerns appeals instituted by the Government against acquittals rendered by any court other than a High Court, while Chapter XXXII governs references and revisions that are powers exercised by a High Court over judgments or orders of subordinate courts, thereby excluding from the stated exceptions all judgments or orders that the High Court issues in its capacity as an appellate court. Although Section 430 does not expressly confer finality on judgments issued by a High Court when it is exercising its revisional jurisdiction, the Court held that the same principle of finality must apply because the High Court, being the highest appellate authority in the State, pronounces a judgment that replaces the judgment of the lower court and thereby becomes final. The Court further noted that when the High Court exercises its revisional powers under Section 439, it is in fact exercising the powers conferred on an appellate court by Sections 423, 426, 427 and 428, and that this exercise is, in substance, an application of appellate jurisdiction even though it is carried out in the manner prescribed for revision. Consequently, the doctrine of finality of criminal judgments applies equally when the High Court acts under its revisional jurisdiction. Once the High Court has pronounced a judgment, whether in the exercise of appellate or revisional powers, no review or revision of that judgment can be entertained, because the Criminal Procedure Code provides no provision that enables even the High Court to review its own judgment or to exercise another revisional jurisdiction over the same matter. The High Court judgment therefore supersedes and replaces the lower court’s judgment, which ceases to subsist, and only the High Court judgment remains final and must be carried out in accordance with law by the subordinate courts. Finally, Section 425 obliges the High Court, whenever it decides a case on appeal, to certify its judgment or order to the court that originally recorded or passed the finding, sentence or order, so that the lower court may implement the High Court’s decision.

Section 425 mandates that when the High Court decides an appeal, it must forward, or certify, its judgment or order to the court in which the original finding, sentence, or order that was appealed had been recorded, and that receiving court is required to issue orders that conform to the High Court’s judgment and, if it is necessary, to amend the record accordingly. In a similar fashion, Section 442 provides that when the High Court revises a case under Chapter XXXII, it must likewise certify its decision or order to the court that originally recorded the finding, sentence, or order that is being revised, and that court must then make orders that are consistent with the certified decision and amend the record if required. These statutory provisions exist because the High Court itself does not execute the sentences or orders against convicted persons; the responsibility for execution lies with the courts that originally passed those sentences or orders, and they must carry out their duties in accordance with the final judgments rendered by the High Court, which have replaced the earlier lower-court decisions. Consequently, there is no circumstance in which the High Court may invoke its revisional powers under Section 439(1) of the Criminal Procedure Code with respect to its own judgments, since those judgments have already supplanted the lower-court rulings. The revisional jurisdiction under Section 439(1) may be exercised only when the record of subordinate-court proceedings has been brought before the High Court, or when the case has been reported to it for orders, or when the High Court, on its own initiative or on an application by an interested party, decides to issue a notice for enhancement of a sentence. Such an exercise of revisional jurisdiction concerns the judgments of the lower courts, not the High Court’s own judgments that have replaced them. Although the Criminal Procedure Code does not provide a definition of “judgment,” the Madras High Court Full Bench, in Emperor v. Chinna Kaliappa Gounden and another (1905) I.L.R. 29 Mad. 126, observed that an order of dismissal under Section 203 does not constitute a judgment within the meaning of Section 369. The court further held that the principle of autrefois acquit does not apply because no trial occurs when a complaint is dismissed under Section 203; therefore, such a dismissal does not bar a rehearing of the complaint by the same magistrate even if the dismissal has not been set aside by a competent authority. Section 366 specifies the language and contents required of a judgment, while Section 367 requires that a judgment contain both the decision and the reasons for that decision; until these requirements are satisfied, a pronouncement does not amount to a judgment and, once signed, it cannot be altered or reviewed except to correct a clerical error under Section 369, subject to the limitations therein.

The Court explained that sections 366 and 367 of the Criminal Procedure Code prescribe the language and contents required in a judgment. Section 367 states that a judgment must contain both the decision and the reasons for that decision, as required. The Court further noted that until a judgment satisfies these statutory requirements, it does not constitute a judgment under the Code. Consequently, a judgment that meets the requirements and is signed cannot be altered or reviewed except for correction of a clerical error, as allowed by section 369, subject to the exceptions contained therein. The observations of the Madras High Court on this point were later endorsed by Justice Sulaiman in the case of Dr. Hori Ram Singh v. Emperor. Justice Sulaiman observed that the Criminal Procedure Code does not expressly define the term “judgment,” but the various provisions of the Code collectively indicate its meaning. He examined the relevant sections and concluded that, within the Code, “judgment” refers to a judgment of conviction or acquittal. He supported his conclusion by citing the earlier decision of the Madras High Court in Emperor v. Chinna Kaliappa Gounden & another, reported in the 1905 Indian Law Reports, Madras. The citation for that decision appears as (1) [1905] I.L.R. 29 Mad. 126 and (2) A.I.R. 1939 Federal Court 43.

The Court then referred to the observations of Sir Arnold White, Chief Justice, in Emperor v. Chinna Kaliappa Gounden & another. Those observations were subsequently followed by a Division Bench of the Madras High Court in Emperor v. Maheshwara Kondaya, reported in the 1908 Indian Law Reports, Madras, volume 31, page 543. That bench held that an order of discharge could not be described as a judgment. It reasoned that a judgment is intended to indicate the final order in a trial that results in either conviction or acquittal of the accused. A Full Bench of the Bombay High Court, in Emperor v. Nandlal Chunilal Bodiwala (1945 48 Bom. L.R. 41), articulated that a judgment represents the court’s opinion. It added that this opinion is formed after due consideration of all evidence and arguments. The Court observed that sections 366 and 367 govern judgments of trial courts. Section 424, which deals with appellate court judgments, stipulates that the rules applicable to trial-court judgments shall be applied as far as practicable to judgments of any appellate court other than a High Court. From this, the Court inferred that no fixed rule exists regarding the precise contents of a High Court judgment when the court sits in either its appellate or revisional jurisdiction. This lack of a definitive rule is understandable because a High Court judgment in criminal matters is ordinarily final. Consequently, it does not necessarily require a detailed statement of reasons, regardless of whether the court is exercising appellate or revisional powers. Nevertheless, any pronouncement of the High Court that reflects the court’s considered opinion on the evidence and arguments will constitute a judgment of conviction or acquittal. If a pronouncement cannot be understood as such an expression of opinion, it cannot be treated as a High Court judgment. A judgment rendered by the High Court in its appellate or revisional capacity after a notice has been issued and a full hearing conducted...

The Court explained that a judgment rendered by the High Court after hearing both parties would necessarily be based on a careful consideration of the evidence and all arguments. The judgment would therefore replace the decision of the lower Court and would become the sole final decree to be executed according to law by the subordinate Court. The Court referred to earlier authorities, namely (1) [1905] I.L.R. 29 Mad. 126, (2) [1908] I.L.R. 31 Madras 543 and (3) [1945] 48 Bom. L.R. 41 (F.B.), to illustrate this principle.

When a convicted person who is in custody presents an appeal that is summarily dismissed under section 421, or when a revision application made by the same person is dismissed summarily or “in liming” without affording him or his pleader an opportunity to be heard, the High Court is merely refusing to entertain the appeal or revision. An order that merely states “dismissed” or “rejected” cannot be described as an expression of the Court’s opinion formed after a full consideration of the evidence and arguments. Such an order merely indicates a refusal to admit the appeal or revision, thereby obliging the Court to issue notice to the opposite party and to decide the matter after a complete hearing conducted in the presence of both parties. Only after the appeal or revision is admitted would a notice be issued, and the simple refusal to entertain the petition does not amount to a judgment.

The Court further observed that the same principle applies when a reference is made by the lower Court to the High Court under section 438. If, after reviewing the reference, the High Court records an order stating “no order on the reference,” this indicates that the Court has concluded that no prima facie case exists to justify its interference. Conversely, if the High Court were of the view that a prima facie case did exist, it would entertain the reference and issue a notice to the parties directing them to show cause why the lower Court’s judgment and order should not be revised.

In situations where an appeal is presented to the High Court by a convicted person or his pleader, section 421 mandates that the appeal should not be dismissed unless the appellant or his pleader has been given a reasonable chance to be heard in support of the appeal. The High Court may, before dismissing the appeal under this provision, call for the case record, although it is not bound to do so. Even when the record is called, the purpose of the hearing before the appellant or his pleader is solely to determine whether a prima facie case exists that warrants the Court’s interference in the appeal. The appellant or his pleader would be heard in support of that position, and if he satisfied the High Court

The Court explained that when the High Court found a prima facie case for its interference, it would admit the appeal and would cause a notice to be issued to the opposite party. In that situation the appeal would be decided only after a full hearing in which both parties were present. The Court noted that calling for the records of the case was not mandatory but was a discretionary power of the High Court, exercised solely to decide whether a prima facie case for interference existed. The Court further clarified that the entire purpose of hearing the appellant or his pleader, even after the records had been called, was to determine whether such a prima facie case existed. At that stage the Court would not examine the evidence in depth nor hear arguments aimed at deciding whether the conviction should be upheld or whether the sentence should be reduced. The Court held that a setting aside of the conviction or any reduction in sentence could be decided only after notice had been issued to the opposite party and a full hearing had taken place before both parties. The Court stressed that even where a petition of appeal was dismissed summarily under these circumstances, the position remained the same as when a petition of appeal filed by a convicted person from jail, or an application for criminal revision filed by him or on his behalf, was dismissed summarily. In all such cases there would be no judgment of the High Court that replaced the judgment of the lower court. The High Court’s action would be limited to refusing to admit the petition of appeal or the criminal revision and to issuing notice to the opposite party for the final determination of the questions raised in the appeal or revision. The Court observed that an order dismissing the appeal or the criminal revision, whether summarily or in limine, constituted a final order of the High Court that was not subject to further review or revision even by the High Court itself, but it did not amount to a judgment that supplanted the lower court’s judgment. Consequently, the convicted person was bound by that order and could not present another petition of appeal or another application for criminal revision challenging the conviction or the sentence imposed by the lower court. Nevertheless, such an order did not replace the lower court’s judgment, which remained subject to the High Court’s revisional jurisdiction under section 439 of the Criminal Procedure Code, either suo motu or on the application of the State or any interested party. The Court referred to the earlier discussed cases (1) and (3) in support of this reasoning.

Because there was no judgment of the High Court that supplanted the judgment of the lower Court, the provisions of section 439(1) became applicable. Accordingly, the High Court, while exercising its revisional jurisdiction either on its own motion or on an application made by an interested party, could issue a notice of enhancement of sentence. Such a notice had to be served on the accused in accordance with section 439(2), thereby granting the accused an opportunity to be heard either in person or through a pleader acting on his behalf. In that circumstance, when the convicted person was called upon to show cause why his sentence should not be enhanced, he was also entitled to show cause against the conviction itself. The Court observed that this principle extended even to situations where a petition of appeal or an application for criminal revision was dismissed summarily or dismissed in limine, provided that the High Court had nevertheless heard the accused or his pleader to determine whether there existed a prima facie case for interference. In such cases, the accused, having been given an opportunity under section 439(2) to show cause as to the enhancement of his sentence, was likewise entitled, in the same showing-cause proceeding, to challenge the conviction. The same rule applied when a reference made by the lower Court to the High Court under section 438 of the Criminal Procedure Code was rejected by the High Court without issuing any notice to the parties, the rejection being expressed merely by the order “no order on the reference.”

Conversely, when the High Court admitted a petition of appeal or an application for criminal revision, issued a notice to the opposite party, and thereafter upheld the conviction—whether with or without reducing the sentence—the judgment rendered by the High Court in the exercise of its appellate or revisional jurisdiction supplanted the judgment of the lower Court. In such circumstances, section 439(1) could not be invoked because its revisional power could be exercised only with respect to judgments of the lower Courts and not with respect to the High Court’s own judgments. Accordingly, the situations identified as cases (2) and (4) fell outside the reach of section 439(1). As a result, the accused would have no opportunity to be heard personally or through a pleader under section 439(2), and the provisions of section 439(6) would not be triggered. If no notice of enhancement could be issued under these conditions, there could be no occasion for the convicted person to show cause as to the enhancement of his sentence, nor could he be entitled to show cause against his conviction. By logical implication, the High Court could not issue a notice for enhancement of sentence after it had pronounced a judgment following a full hearing of both parties, whether acting in its appellate capacity or its revisional capacity.

In the matter before the High Court, the Court observed that a notice for enhancement of sentence could be issued only while the judgment of the lower Court remained in force and had not been supplanted by a judgment of the High Court exercised in either its appellate or its revisional jurisdiction. Such a notice could be issued either on the Court’s own initiative or upon the application of an interested party, provided the lower Court’s judgment was still subsisting and had not been replaced by the High Court’s own judgment in the exercise of either appellate or revisional powers. When the lower Court’s judgment was under the High Court’s scrutiny, a notice to the opposite party had been issued and a full hearing was being conducted for both parties, the Court held that the notice for enhancement of sentence could be issued only before the High Court pronounced a judgment that would replace the lower Court’s decision. While such a hearing was ongoing, it was incumbent upon the High Court as well as upon the opposite party to decide, before the judgment was rendered, whether a notice for enhancement of sentence should be issued to the accused. The Court noted that the opposite party would have ample opportunity to decide whether to apply for a notice of enhancement of sentence, and that the High Court, after reviewing the record and hearing arguments presented by both parties, would also be in a position to determine whether to issue such a notice to the accused. However, the Court stressed that if neither the opposite party nor the High Court made that determination before the hearing concluded and the judgment was pronounced, neither could thereafter issue a notice for enhancement of sentence, because at that point the High Court’s judgment, rendered in exercise of its appellate or revisional jurisdiction, would replace that of the lower Court and section 439(1) would no longer apply. The Court further explained that even in a situation where the lower Court made a reference under section 438 of the Criminal Procedure Code, if the High Court did not summarily reject that reference, it would issue notice to the parties concerned, thereby creating an occasion for the Court either on its own initiative or on the application of an interested party to issue a notice of enhancement of sentence before the hearing concluded and a judgment was pronounced. The Court asserted that the practice observed in several High Courts, which allowed a notice for enhancement of sentence to be issued after the appeal or criminal revision had been disposed of and a judgment pronounced, was incorrect and contrary to the position set out above. Finally, the Court addressed the contention that the non-obstante clause in section 439(6), namely the words “notwithstanding anything contained in this section”, was intended to give the convicted person a right to show cause against his conviction whenever a notice to show cause why his sentence should not be enhanced was issued, regardless of the circumstances of issuance. The Court noted that once a notice for enhancement of sentence had been issued against the convicted person, that right to show cause would arise.

In this case, the right to show cause against a conviction also attached to a person even if he had previously unsuccessfully challenged the conviction on appeal or in revision. The Court held that the non-obstante clause of section 439(6) could not supersede the conditions set out in section 439(1), which limits High Court revisional powers to the judgments of lower courts. Section 439(6) becomes effective only after a proper notice for enhancement of sentence has been issued under section 439(2). A notice under section 439(2) may be issued only when the High Court decides to exercise its revisional authority under section 439(1) with respect to the lower-court judgment. The High Court does not possess jurisdiction to revisit its own judgments or orders, because such decisions are final and lie outside the scope of revisional jurisdiction. Consequently, the non-obstante clause in section 439(6) is intended only to allow a convicted person to show cause against his conviction. It also enables him to argue why his sentence should not be enhanced, even though section 439(5) otherwise prohibits such a challenge. Thus, the ability to contest the conviction is tethered strictly to the existence of a valid notice of enhancement issued by the High Court.

When an appeal is permissible under the Code and no appeal is filed, the law does not permit a revision proceeding initiated by the party who could have appealed. If a convicted person had the opportunity to file an appeal but failed to do so, he cannot approach the High Court in revision to have his conviction set aside. Likewise, if he is unable to file any revision application, he cannot invoke section 439(1) to show cause against his conviction. The non-obstante clause in section 439(6) was enacted to remove this disability, allowing the convicted person to show cause against his conviction when the High Court, exercising powers, issues a notice of enhancement of sentence. This right arises even though the convicted person would otherwise be barred from challenging the validity of his conviction because he did not appeal when an appeal was available. He also cannot maintain the conviction because he is not entitled to file a substantive criminal revision application. Section 439(6) therefore gives the convicted person a specific right to contest the enhancement of his sentence while also challenging his conviction. That right can be exercised only when the High Court, acting under section 439(1), decides to issue a notice of enhancement of sentence under section 439(2). In that circumstance, the convicted person may show cause both against the enhancement of his sentence and against his conviction itself.

In this case the Court turned to the matter of allowing a convicted person to show cause against his conviction while also being required to explain why his sentence should not be enhanced. The Court then examined the decisions of various High Courts that had been pointed out by counsel. First, the Court considered the decision of the Bombay High Court in Emperor v. Chinto Bhairava (1) [1908] I.L.R. 32 Bom. 162. That decision, rendered in 1908, recorded a long-standing practice of that Court extending for more than twenty-five years, whereby an accused who was called upon to show cause why his sentence should not be heightened was not permitted to dispute the evidence or to convince the Court that the conviction itself was erroneous. The Court’s practice was to treat the conviction as conclusive and to decide the question of enhancement of sentence on that basis alone. Although the accused could apply for revision of the conviction, having failed to do so, he could not be allowed to attack the conviction in a proceeding whose sole issue was whether the sentence imposed by the lower Court was adequate. The Court noted that this authority pre-dated the amendment of section 439 of the Criminal Procedure Code by Act XVIII of 1923, which inserted subsection (6). The next decision referred to was Emperor v. Mangal Naran (1) (1924) 27 Bom. L.R. 355. In that case, the Court admitted an appeal filed by the accused and at the same time issued a notice for enhancement of sentence. When the appeal and the notice were heard together before a Division Bench, the Court expressed that such a practice was undesirable because it might give an illiterate prisoner the impression that the sentence was being increased merely because he had appealed. MacLeod, C.J. stated that if, after an appeal had been heard on its merits and dismissed, a notice to enhance the sentence was issued, the accused still retained the right to show cause against his conviction, although any attempt to overturn the conviction was unlikely to succeed. Nevertheless, MacLeod, C.J. expressed a preference for the earlier practice of first disposing of the appeal and then considering whether a notice to enhance should be issued. The case did not require the Court to determine the proper construction of section 439(6); the sole issue was the appropriate procedure for issuing a notice of enhancement—whether it should accompany the admission of an appeal or be issued after the appeal had been finally heard and disposed of. Consequently, the opinion of MacLeod, C.J. was treated as obiter in Emperor v. Jorabhai Kisanbhai (2) [1926] I.L.R. 50 Bom. 783, where the Court later confronted the question of whether, after an appeal and its dismissal, a subsequent notice to enhance the sentence could be heard on its merits or whether the accused was barred under section 439(6) from being reheard on the merits of his conviction.

In the case before the Court, the question arose whether, after a Division Bench of the High Court had dismissed an appeal filed by an accused against his conviction and sentence, the Government could nevertheless apply for a notice to enhance the sentence and have that application heard on its merits, treating the conviction as affirmed, or whether the accused, under section 439(6) of the Criminal Procedure Code, was barred from being reheard on the merits of his conviction. The appeal had been dismissed on 7 April 1926. Subsequent to the delivery of the judgment, the Government Pleader made an oral request for a notice of enhancement, and the High Court granted that request. The application for enhancement was then listed for hearing on 17 June 1926. On that date, the accused contended that the correct procedural rule required the notice of enhancement to be issued before the appeal was finally disposed of, and that once the High Court had dismissed the appeal, there was no longer any legal authority under section 439 to increase the sentence. The Court rejected this contention. It observed that, as a matter of procedure, there was no rigid rule prescribing the precise moment at which a notice of enhancement must be issued by the High Court. While the principle of finality of judgments meant that the High Court’s dismissal of the appeal confirmed the conviction and the sentence, that confirmation did not preclude the Court from enhancing the sentence where the Code authorised such a step, provided that the proper procedural requirements were satisfied. The Court further noted that the judgment which dismissed the appeal was interpreted as confirming the conviction and rejecting any reduction of the sentence, but it was not a decision that the sentence could not be increased if the statutory provisions permitted it. Consequently, nothing in the judgment itself constrained the Court’s discretion to entertain the application for enhancement.

The Court also referred to sections 369 and 430 of the Criminal Procedure Code and held that the observations made by MacLeod, C.J. in Emperor v. Mangal Naran were obiter dicta and therefore not binding on the present matter. Accordingly, the application for enhancement had to be heard on its merits, treating the conviction as correct in view of the dismissal of the appeal. The Court affirmed the view expressed by Madgavkar, J. that the question of whether a punishment is adequate is primarily a matter for the Government and the District Magistrate. From the moment a sentence is passed until the time an appeal is admitted and a notice is received, the Government may consider the sufficiency of the sentence and, if it deems it necessary, may apply to the High Court for an enhancement before the appeal is heard. In such circumstances, the appeal and the notice of enhancement would be considered together, and the Court hearing the appeal would decide both whether the conviction should be confirmed and whether the sentence should be modified, whether reduced or enhanced, as appropriate.

In this case the Court explained that from the moment a sentence was imposed until the instant an appeal was formally admitted and the notice of appeal was received the Government retained the authority to examine whether the punishment imposed was sufficient, and that before the appeal was heard the Government could apply to the High Court for an enhancement of the sentence if it was so advised. When the Government made such an application both the appeal and the notice of enhancement would be heard together, and the Court hearing the appeal would be required to consider not only whether the conviction should be confirmed but also whether the punishment should be reduced or increased as the circumstances warranted. The Court observed that the High Court ordinarily intervened in matters of sentence enhancement only in rare situations, namely when the Government had taken no action and the High Court was persuaded that the interests of justice imperatively demanded such intervention. In those exceptional cases the High Court would have to decide whether to issue a notice of enhancement at the time of admission of the appeal or to wait until it was disposing of the appeal on its merits with respect to the conviction. The Court further noted that the observations of the learned Judge, insofar as they seemed to suggest that the appeal should first be disposed of and that the question of enhancing the sentence should be considered by the same bench immediately afterwards, or that the notice for enhancement could be issued after the disposal of the appeal on the merits of the conviction, failed to take into account the fundamental principle that once the High Court pronounced its judgment and confirmed the conviction it simultaneously confirmed the sentence unless it chose to reduce it. At that point the High Court’s judgment replaced the judgment of the lower court and the Court could no longer exercise any revisional power to enhance the sentence, because such revisional powers could be exercised only with respect to the judgment of the lower court; after the High Court’s own judgment supplanted that lower-court judgment the High Court possessed no further authority to review or revise its own decision by increasing the punishment. Accordingly the Court held that the principle of finality embodied in sections 369 and 430 of the Criminal Procedure Code should not be confined merely to the confirmation of the conviction but should also extend to the confirmation of the sentence where the High Court found no reason to reduce the punishment imposed by the lower court, and that when the High Court heard the appeal on its merits it was required to consider both the confirmation of the conviction and the adequacy of the sentence.

In reviewing the sentence imposed by the lower Court, the High Court examined whether that sentence was adequate, meaning whether it should be reduced, confirmed, or enhanced. The Court emphasized that the questions of reducing or enhancing a sentence are not isolated from each other; rather, the appellate court must consider all aspects of the matter, including confirming the conviction and deciding whether the sentence requires alteration. Accordingly, the principle of finality of judgments was held to apply not only to the confirmation of the conviction but also to the determination of the adequacy of the sentence handed down by the lower Court. Once the High Court’s judgment replaces that of the lower Court, the High Court no longer possesses any revisional power under section 469(1) of the Criminal Procedure Code. If the High Court wishes to issue a notice of enhancement of sentence, whether on its own initiative or on an application by an interested party, the proper procedure demands that such notice be issued before the appeal hearing is concluded and before the High Court pronounces its judgment in the appeal.

The Court expressed the view that the decision of the High Court of Bombay in Emperor v. Jorabhai (1) was incorrect because it allowed a notice of enhancement to be issued by the High Court at the Government’s request after the appeal had been dismissed on its merits. The Court held that the notice for enhancement issued in that case was incompetent and should not have been issued by the High Court at all. The same principle was applied in Emperor v. Koya Partab (2), where an appeal presented from jail and summarily dismissed under section 421 of the Criminal Procedure Code also received a notice of enhancement. When that notice was slated for hearing, the accused claimed a right to be heard on the merits of his conviction based on section 439(6). Chief Justice Beau-mont, however, relied on the provisions of section 430 and observed that the accused was not entitled to a merit hearing. The Court of Appeal’s order dismissing the appeal on 9 June 1930 was deemed a final order from which the Court could not deviate, and the non-obstante clause in section 439(6) did not grant the accused further rights.

In this case the Court considered whether the provisions of section 430 prevented the accused from challenging his conviction after his appeal had been dismissed. The learned Chief Justice relied on the earlier decision in Emperor v. Jorabhai (1) and pointed out that the only difference between that precedent and the present matter was that the former case had been heard on its merits, whereas the present appeal had been dismissed summarily. He concluded, however, that this factual distinction did not create a new principle of law.

The present Court disagreed with that view. It held that the order issued by the Court of Appeal on 9 June 1930 was not a judgment of the High Court that replaced the earlier judgment of the subordinate court, although the order could be described as an “order” within the meaning of section 430. Because it was not a judgment as defined by the Court, the fact that it was not a judgment did not bar the accused from showing cause against his conviction when he was also showing cause against the notice of enhancement of sentence. The Court observed that the situation fell within the category of cases previously noted and that, even though the accused’s petition for appeal from jail had been summarily dismissed under section 421, he remained entitled, while contesting the notice of enhancement, to also contest the validity of his conviction.

Accordingly, the Court found the earlier decision to be incorrect and held that the accused should have been given an opportunity to be heard on the merits of his conviction. The Court referred to Emperor v. Ramchandra Shankarshet Uravane (1), a case in which the High Court admitted an appeal and simultaneously issued a notice of enhancement of sentence. It also noted that the observations of MacLeod, J. in Emperor v. Mangal Naran (2) were followed, even though those observations had been made obiter by the Division Bench in Emperor v. Jorabhai (3).

Further, the Court cited Emperor v. Jorabhai (3), which held that it was neither necessary nor desirable for the High Court to issue a notice of enhancement at the time of admitting an appeal. Nevertheless, that decision also recognised that the question of enhancement of sentence could be addressed after the appeal had been heard. The Court clarified that if the earlier observations were intended to allow consideration of enhancement only after the appeal was finally decided and the judgment pronounced, the present Court could not accept that view. However, if those observations meant that the High Court could address the question of enhancement at the same time as hearing the appeal—before pronouncing judgment on the conviction and before the sentence was fixed—then such a procedure was deemed perfectly proper. The relevant authorities cited included Emperor v. Ramchandra Shankarshet Uravane (1) [1932] 35 Bom LR 174, Emperor v. Mangal Naran (2) [1924] 27 Bom LR 355, and Emperor v. Jorabhai (3) [1926] I.L.R. 50 Bom 783.

In the case of Emperor v. Inderchand (1) the Court expanded the rule set out in Emperor v. Jorabhai. The expansion applied to a situation where the accused’s revision petition against his conviction and sentence had been dismissed by the High Court. The facts were that the accused filed a revision petition which the Vacation Judge dismissed summarily on 30 April 1954. After that summary dismissal the State filed a criminal revision seeking enhancement of the sentence. The Division Bench held that, because the Vacation Judge had fully disposed of the accused’s revision petition, a valid order of dismissal existed; consequently section 430 barred the accused from obtaining a review of that dismissal by the High Court. The Bench further held that the right conferred by section 439(6) could not create a hearing right against the conviction when such a right conflicted with other provisions of the Code. Moreover, under section 369 the Court possessed no authority to alter the Vacation Judge’s order dismissing the accused’s revision petition. Consequently, once the accused had unsuccessfully exercised his appeal or revision right before the High Court, a subsequent application by the Government for enhancement of sentence could not compel the High Court to revisit the merits of the case or set aside a conviction that the Court had already confirmed either on appeal or on revision. Justice Divatia recognised the anomalous position this created for the accused and referred to the observations made in Emperor v. Babu Pandurang Mhaske (3). In that earlier decision the Court correctly noted that when the High Court itself intends to increase a sentence, the accused should be permitted to challenge his conviction before the same bench that is hearing either the appeal or the application for enhancement. The Court further observed that the enhancement application ought to be heard before the appeal is finally decided so that the accused may be heard at the moment the question of enhancement arises. While endorsing those observations, the learned Judge cautioned that such a procedure is feasible only when the High Court itself initiates the enhancement and gives notice to the accused. It is not applicable when the Government approaches the High Court through a revisional application under section 439(1). The Government may file a revision under section 439(1) at any time within six months after the lower court’s decision, and during that interval the accused may also appear before the High Court and have his application rejected. That might result

In this case, the conviction could be confirmed by one Bench or a single Judge, while the application for enhancement might be heard by a different Bench. But regarding the provisions of section 439, the learned Judge held that even if the procedure created an anomaly, the inconvenience or hardship to the accused should not cause the Court to interpret section 439 in a way that, in the Judge’s view, was contrary to legislative intent. These observations, however, omitted the fact that when an appeal petition or a criminal revision application filed by the accused was dismissed summarily or in limine, there was no judgment of the High Court that replaced the lower Court’s judgment. In such circumstances the High Court’s order merely amounted to a refusal to intervene in its appellate or revisional jurisdiction; although that order was final and not subject to review or further revision by the High Court, it did not constitute a High Court judgment that barred the operation of section 439(1) of the Criminal Procedure Code. Consequently, because the lower Court’s judgment remained unreplaced, the matter could still be taken up as a criminal revision on the Government’s behalf for the purpose of enhancing the sentence, and all the provisions of section 439 would then become applicable. Under section 439(2) the High Court would be obligated to give the accused an opportunity to be heard before any enhancement of the sentence ordered by the lower Court. Moreover, under section 439(6) the accused would be entitled, when showing cause against the notice of enhancement, also to show cause against the conviction itself. The High Court’s decision in this regard was therefore held to be erroneous, and the accused should have been permitted, despite the summary dismissal of his revision application, to show cause both against his conviction and against the notice of enhancement. Another decision of the Bombay High Court was cited, namely Emperor v. Nandlal Chunilal Bodiwala. In that case the Sessions Judge of Ahmedabad, at the petitioner’s request, referred a matter to the High Court, alleging that the Additional Magistrate lacked jurisdiction, power or authority to pass the order in question and urging the High Court to set aside that order. When the reference reached the High Court, the Court issued an order without giving notice, stating “no order on this reference.” The petitioner subsequently filed a criminal revision application before the High Court seeking quashing of the Additional District Magistrate’s order. That revision application was heard before a Division Bench, and the Division Bench asked the Chief Justice to constitute a Full Bench.

The Court was asked to consider the following question: “When, on a reference made by the Sessions Judge under section 438 of the Criminal Procedure Code, a Division Bench of this Court passes an order without issuing notice, viz., ‘No order on this reference’, is the applicant, at whose instance the Sessions Judge made the reference, entitled to file an application in revision to this Court in the same matter, in view of the provisions of section 369 of the Criminal Procedure Code?”1 The application was placed before a Full Bench. Counsel for the petitioner argued that the High Court, by disposing of the reference without issuing notice to the applicant and merely recording “no order on the reference,” had not delivered a substantive judgment on the merits. According to this argument, the order simply indicated that the Court would not entertain the matter on the Sessions Judge’s recommendation and that it was being dismissed on that basis alone. The petitioner further maintained that if such a dismissal were treated as a judgment, the party for whose benefit the Sessions Judge made the reference would be stripped of the statutory right to approach the High Court in revision, because the Court would have already disposed of the matter in the manner described.

The Full Bench rejected this line of reasoning. It held that section 369 of the Criminal Procedure Code expressly bars the petitioner from filing a criminal revision application in these circumstances. The Bench clarified that the order issued by the High Court on the reference constitutes a judgment within the meaning of section 369, and once the judgment is signed it cannot be altered or reviewed through a subsequent revision application. Consequently, even though the Division Bench gave the terse order “no order on this reference” without giving notice to the applicant, the applicant—who was the beneficiary of the Sessions Judge’s reference—was not entitled to file a revision in the same matter before the High Court.

While reaching this conclusion, the Full Bench observed that it was aware of the petitioner's grievance that his position had been made worse rather than better by the Sessions Judge’s favorable reference. The Court noted that if the Sessions Judge’s recommendation were rejected without hearing the petitioner, as occurred here, the petitioner suffered a disadvantage. In contrast, had the Sessions Judge been adverse to the petitioner, the petitioner would still have been able to approach the High Court in revision and present his case. The Bench described this situation as an anomaly, attributing it to the effect of rule 26 of the Appellate Side Rules of the Bombay High Court, which obliges a party to first apply to a lower revisional court before seeking relief from the High Court.

In this case the Court observed that the petitioner suffered a disability because, unlike a situation where the Sessions Judge dismissed his application, he was unable to approach the High Court and present his arguments. The difficulty arose because the Sessions Judge, being favourable to the petitioner, made a reference to the High Court recommending that the order of the trial court be set aside. The High Court, however, was not persuaded by the reasons given in that recommendation and disposed of the reference without issuing any rule. As a result the petitioner was barred from advancing his arguments before the High Court. The Court noted that the reasons supplied by the Sessions Judge for the recommendation could be weak or insufficient, whereas the petitioner, if he were permitted to appear, might be able to put forward cogent and sufficient reasons for setting aside the original order.

Despite highlighting this disability, the Full Bench only recommended that Rule 26 of the Appellate Side Rules be properly amended so that notice would be issued to all parties concerned when a Sessions Judge makes a reference recommending the setting aside of a trial-court order. The Court expressed the view that the Full Bench should not have stopped at merely pointing out the disability suffered by the applicant. It should have gone further and declared that the order passed by the High Court on the reference, although final under section 430 of the Criminal Procedure Code, was not a “judgment” within the meaning of that term. Consequently, that order did not prevent the applicant from filing the criminal revision application that he lodged under section 439(1) of the Criminal Procedure Code. The Court reiterated the definition of “judgment” given by the Full Bench itself: “a judgment is the expression of the opinion of the Court arrived at after due consideration of the evidence and of the arguments.”

The Court further held that the decision of the Bombay High Court was incorrect. It referred to the authority in Emperor v. Jorabhai, which had been followed by the Lahore High Court in Emperor v. Dhanalal. In that case a revision petition filed on behalf of a convicted person was dismissed after hearing counsel. Subsequently a report of the Sessions Judge was received, and the learned Judge who had dismissed the revision petition issued a notice for enhancement of sentence. The Court held that section 439(6) was intended to give an accused person, to whom a notice for enhancement was issued and who had not appealed, or where no appeal was possible, an opportunity to question the correctness of his conviction if a sentence enhancement was proposed. The Court noted, however, that if a petition for revision against his conviction by a convict had been rejected by a Judge of the High Court and

In the matter before the Court, a notice was subsequently issued to the convicted person directing him to show cause why his sentence should not be enhanced. Because of that notice, the convict was barred from challenging his original conviction. The Court observed that the earlier order which dismissed the revision petition had been rendered without any notice to the opposite party, yet that omission did not change the legal position of the convict. The Court also invoked the principle of finality of criminal judgments and held that, although the words “unless he had already done so” did not appear at the end of the sub-section, they must be presumed to be implied by the ordinary presumption of finality that applies to orders in criminal revision proceedings. In arriving at this conclusion, Justice Addison observed: “In the present case there has been a judgment of this Court on the very full revision application brought by the convict. By that judgment the petition was dismissed and the conviction confirmed. Under section 369, Criminal Procedure Code that judgment cannot be reviewed. It is a final judgment of this Court, and in my opinion the provisions of sub-section (6), section 439, do not give the convict another opportunity in these circumstances to be heard as regards his conviction.”

The Court found no justification for reading the phrase “unless he had already done so” into the provision, and it held that the reasoning of the learned Judge wrongly treated the order passed by the High Court in the exercise of its revisional jurisdiction as a judgment, even though the High Court had dismissed the application without issuing notice to the opposite party. The Court explained that such an order could be considered a judgment only if it had been pronounced after a full hearing in the presence of both parties following proper notice. If that had occurred, the High Court’s pronouncement would have replaced the lower Court’s judgment and would not have been subject to any further revisional jurisdiction under section 439(1) of the Criminal Procedure Code. However, where the petition for revision against the conviction was rejected by the High Court in limine, the order did not amount to a judgment that would prevent the convict from showing cause against his conviction when a subsequent notice for enhancement of sentence was issued. The learned Judge further observed: “There appears to be no distinction between dismissing a revision petition in limine or after notice. The judgment is in either case an effective and final judgment of the Court. In this respect there is no difference between a revision petition and a memorandum of appeal… In these circumstances I can see no force in the argument that an order dismissing a revision petition without issuing notice is different from an order after the issue of notice, or that there is any distinction between a judgment of this Court passed on the revision side and one on the appellate side.”

In this case, the Court accepted the earlier Judge’s observation that, for the purpose of section 439(1) of the Criminal Procedure Code, there was no legal difference between a judgment of the High Court rendered on a revision side and one rendered on an appellate side. However, the Court expressed the view that a clear distinction existed between two kinds of orders. The Court held that orders which dismissed a revision petition or an appeal petition in limine, without giving notice to the opposite party, were not the same as judgments pronounced after the High Court had heard both parties fully following the issue of notice. The latter judgments, being delivered after a complete hearing, were true judgments of conviction or acquittal and consequently barred any further exercise of revisional jurisdiction by the High Court under section 439(1). The Court further noted that the Lahore High Court’s earlier decision had been overruled by a Special Bench in Emperor v. Atta Mohammad (1). In that case, a criminal revision application had been dismissed in limine, after which the High Court issued a notice for enhancement of sentence. The Court also referred to the decision in Emperor v. Dhanalal (1), following Emperor v. Jorabhai (3), which had been cited as preventing the accused from showing cause against his conviction. The matter, originally argued before Justice Blacker, was referred to a larger Bench and finally decided by a Special Bench, which held that the accused retained the right to show cause against his conviction despite the prior dismissal of his revision petition under section 435 of the Criminal Procedure Code.

The Special Bench then examined whether an order under section 435 could be described as a judgment. Justice Blacker referred to the earlier case of Dr. Hori Ram Singh v. Emperor (1) and quoted, with approval, Justice Sulaiman’s observation that not every order in a criminal proceeding constituted a judgment, and that the term “judgment” in the Code meant a judgment of conviction or acquittal. Applying this definition, Justice Blacker observed that an order under section 435 could hardly be called a judgment. He explained that at the preliminary stage the judge merely either ordered the records of the lower court to be sent for examination under section 439(1) or refused to do so; the latter could not be regarded as a judgment of conviction. When the order consisted only of the word “Dismissed,” it could not be taken as a judicial pronouncement that, in the judge’s opinion, the respondent was correctly convicted on the evidence. He concluded that such an order merely indicated that the judge found no sufficient ground disclosed in the petition or on the face of the judgment for proceeding further.

The Court explained that the expression meant that the Judge found no adequate ground disclosed either in the petition or on the face of the judgment for proceeding further. The Court regarded this reasoning as sound. Nevertheless, the learned Judge went on to draw a distinction between a summary dismissal of an appeal under section 421 and a summary dismissal of a criminal revision application under section 435. He explained that the reasons for which the High Court would summarily dismiss an appeal were substantially different from the reasons for which it would refuse to interfere in a revision. In the case of an appeal, the High Court would dismiss only when the material before it was sufficient to satisfy the Court beyond any doubt of the accused’s guilt. By contrast, in a revision the High Court would not interfere merely because it disagreed with every point of the lower Court, provided that the lower Courts had reached a reasonable decision on the evidence. The Court held that this distinction did not alter the fundamental position that an order by the High Court dismissing either an appeal petition or a criminal revision application in limine, without giving notice to the opposite party, was merely an order dismissing the petition on the ground that there was no prima facie case for interference. Such an order did not amount to a judgment pronounced after a full hearing in the presence of both parties, and therefore it could not deprive the High Court of its revisional jurisdiction under section 439(1).Subsequently, Justice Mahajan, who delivered a concurring judgment, went further and observed that the true construction of section 439(6) bestowed an unlimited right on any accused who received a notice of enhancement under section 439(2) to show cause against his conviction. He stated that the Judge hearing the enhancement petition was bound to examine the evidence himself to determine whether the conviction could be sustained. This right arose for the convict at the moment the notice of sentence enhancement was served and could not be negated by any event that had occurred before the notice was issued. Accordingly, the Judge hearing the enhancement petition had to give the convict an opportunity to challenge his conviction before him and to be convinced that the conviction was unsustainable. That Judge could not substitute his satisfaction with the satisfaction of another Judge. The Court emphasized that it was a condition precedent to the passing of any prejudicial order against an accused that the accused be afforded another opportunity to establish his innocence, even if he had previously failed to do so. The learned Judge correctly observed that an order made in the exercise of an extraordinary discretionary jurisdiction, unless it was a judgment in rem, could not in any way serve as a barrier to the decision of the same matter when that matter later arose in the ordinary appellate jurisdiction, and therefore such an order could not preclude later adjudication.

In this part of the judgment, the Court explained that an order which dismissed a criminal revision application in limine could not be considered a judgment of the High Court. The learned judge then referred to the principle of finality of judgments and stated that, if the view were correct that every order passed in the exercise of revisional jurisdiction—whether it was a dismissal in limine or any other order—removed the convict’s right to challenge his conviction under section 369 of the Criminal Procedure Code, then, because a decision that had already been given could not be altered or reviewed, it would be impossible to change the earlier decision for the purpose of enhancing the sentence. The judge further observed that any magistrate considering a petition for revision under section 439(1) must examine both the propriety of the sentence and the legality of the conviction, and that it could be presumed that the magistrate had done so. Consequently, the judge held that if an earlier decision on the question of conviction prevented the application of section 439(6), that same decision also prevented the power to enhance the sentence. Once it had been determined that the sentence was proper, it could not be increased. The judge could not locate any ratio decidendi in the authorities that treated the question of sentence enhancement as separate from the question of conviction, nor could he find any authority that distinguished the adequacy of the sentence presented in a revision petition from the matter of enhancement. He explained that the judge had to ascertain whether an appropriate sentence had already been passed before deciding the case, and that the issue of whether a sentence was adequate or inadequate could not be split into two separate compartments. The matter concerned only the quantum of punishment, and such a question could be decided only once. Therefore, in his view, either there was no power of re-revision in the High Court, in which case there was no power to enhance the sentence on a separate petition, or, if such a power existed, it was available both to the Crown and to the accused. This reasoning, which the Court found to be sound, led to the conclusion that there was no power of re-revision in the High Court and consequently no power to enhance the sentence on a separate petition. The learned judge therefore should have held that if the order dismissing the criminal revision petition in limine amounted to a judgment pronounced by the High Court, the High Court could not subsequently issue a notice for enhancement of sentence under section 439(1) of the Criminal Procedure Code. However, the judge held that the order dismissing the criminal revision application in limine was merely an order and not a judgment pronounced by the High Court, and he also held that the High Court was entitled to issue a notice for enhancement of sentence under section 439(1).

In the case under consideration the Court observed that the High Court possessed authority to issue a notice for enhancement of a sentence pursuant to section 439(1) of the Criminal Procedure Code. Consequently, the Court concluded that, under section 439(6), an accused who was called upon to show cause against an enhancement of sentence also had the right to show cause against the conviction itself. Justice Mahajan, however, limited his decision to the specific circumstance of a dismissal of a criminal revision application in limine and did not resolve whether a decision rendered on the appellate side of the High Court would preclude the exercise of the right conferred by section 439(6), noting that no arguments were heard on that point.

The present judgment holds that the principle articulated by Justice Mahajan is not confined only to instances where a criminal revision application is dismissed in limine. The principle equally applies to situations where an appeal petition, whether filed from custody or submitted to the Court by the appellant or his pleader, is summarily dismissed or dismissed in limine without any notice being issued to the opposing party. The principle also extends to cases where lower courts refer matters to the High Court and the High Court merely passes an order without issuing notices to any of the parties, that is, where there is “no order on this reference.”

The Patna High Court, in Ramlakhan Chaudhry v. The King-Emperor (1), adopted the reasoning of both Emperor v. Jorabhai (2) and Emperor v. Dhanalal (3). The Patna High Court held that the dismissal of an appeal by the High Court did not prevent the High Court from later enhancing the sentence within its revisional jurisdiction after issuing a notice to the accused. In the cited case, the appeal had been dismissed after a full hearing before the High Court. Nevertheless, during the hearing the Court asked counsel for the accused to show cause why the sentence imposed on them should not be ordered to run consecutively, thereby effectively issuing a notice for sentence enhancement.

When the matter returned for further hearing, the accused contended that, with the disposal of the appeal, the bench—and indeed the High Court—had become functus officio and therefore lacked jurisdiction to consider the issue at all. This contention was rejected. The Court observed that the appellate judgment did not address the question of sentence enhancement, which arose only in the exercise of revisional jurisdiction. Moreover, the sentence subject to revision and possible enhancement was the one imposed by the Court of Sessions, not by the High Court. These observations run counter to the earlier remarks of Justice Mahajan and overlook the fact that, once the High Court pronounced its judgment on the appeal after a full hearing in the presence of both parties, that judgment supplanted the lower court’s decision, and the High Court thereafter possessed no further authority to act in the manner described.

In the matter before it, the Court examined whether the High Court possessed the authority to issue a notice of enhancement of sentence by invoking the revisional powers conferred by section 439(1) of the Criminal Procedure Code. The Court clarified that such revisional powers could be exercised only with respect to judgments rendered by lower courts and not with respect to the High Court’s own judgments. The Allahabad High Court, in the case of Emperor v. Naubat (1), had followed earlier decisions of that Court which had approved the judgment in Emperor v. Jorabhai (2). In Naubat, the Allahabad High Court rejected the contention raised on behalf of the accused that a governmental revision application seeking enhancement of the sentence was incompetent because the accused’s appeal from the conviction had already been dismissed and, therefore, the accused could not again be called upon to show cause against the conviction. The Allahabad High Court treated those earlier decisions as authoritative support for the proposition that, even though the accused was not permitted to show cause against the conviction, the Court could nevertheless consider whether the sentence imposed should be enhanced.

The present Court disagreed with that view. It held that once an appellate judgment replaces the judgment of the lower court, the High Court no longer has competence to issue a notice for enhancement of sentence under its revisional jurisdiction prescribed in section 439(1). Consequently, no situation could arise in which the accused would be required to show cause why the sentence should not be enhanced. The citations for the earlier authorities are: (1) I.L.R. 1945 Allahabad 527 and (2) [1926] I.L.R. 50 Bom. 783. The Court then considered the position adopted by the High Court of Rajasthan in The Stafe v. Bhawani Shankar (1). That Court attempted to reconcile the differing viewpoints by emphasizing whether the accused had previously been afforded an opportunity to show cause against the conviction. It observed that if an accused person had already been heard—whether in appeal or revision—and the dismissal was either summary or on the merits, the accused could not be heard a second time regarding the conviction under section 439(6), because the principle of finality of orders in criminal proceedings would apply. Conversely, the Rajasthan Court held that if the accused had not been heard at all, had been denied any opportunity to show cause, and the jail appeal had been dismissed under section 421 of the Criminal Procedure Code, or the revision had been dismissed without a hearing, the accused was entitled to request that the Court hear him and allow him to show cause against the conviction under section 439(6) if a notice of enhancement was issued.

Nevertheless, the Court concluded that the central issue was not the existence or absence of an opportunity for the accused to show cause at any prior stage. The decisive question, in the Court’s opinion, was whether the High Court was empowered to exercise its revisional authority under section 439(1) and to issue a notice of enhancement of sentence to the accused. If the…

The court observed that when the accused had been given a chance to show cause against his conviction either through an appeal or a criminal revision filed by him or on his behalf, and when the conviction was affirmed after a full hearing conducted in the presence of both parties following the issuance of the requisite notice to the opposite side, the judgment rendered by the High Court would supplant the judgment of the lower court; consequently, that lower-court judgment could not be subject to review or revision by the High Court in the exercise of its revisional powers under section 439(1) of the Criminal Procedure Code. Conversely, the court held that if an order dismissing an appeal or a criminal revision, or even a reference made by the lower court, was issued summarily or in limine without serving notice to the opposite party or parties, the High Court would be justified in declining to entertain any of those proceedings on the ground that no prima facie case existed for interference. Should a prima facie case be established, however, the High Court would admit the appeal or revision, or entertain the reference, and would hear the matter fully before both parties, ultimately pronouncing a judgment that would replace the lower-court judgment; such a replacement would likewise remove the occasion for the High Court to exercise revisional jurisdiction under section 439(1). The court affirmed that the conclusion reached by the High Court of Rajasthan was correct, noting that the accused in that case was rightly permitted to show cause against his conviction despite the summary dismissal of his petition of appeal from jail, although the reasoning adopted by that Court was not agreed with. Section 439(6) confers upon the accused a right to show cause against his conviction, not merely an opportunity to do so. The opportunity is first to show cause against any enhancement of sentence under section 439(2), and once that opportunity is granted, the accused acquires a right to show cause against the conviction itself, regardless of whether he had previously been afforded such an opportunity. The decisive test, therefore, is whether a High Court judgment—issued after a full hearing with notice to both parties—has replaced the lower-court judgment. If such replacement has occurred, there is no longer any occasion for the High Court to invoke its revisional powers under section 439(1); if no such replacement exists, the revisional jurisdiction remains available.

The High Court possessed the authority to issue a notice for enhancement of a sentence, and even though the accused might have previously faced other proceedings, the accused retained, while contesting the notice of enhancement, the separate right to contest his conviction. That right, which the statute confers under section 439(6), could not be withdrawn by invoking the principle of finality of judgments that is embodied in section 369 of the Criminal Procedure Code. The Court previously observed that the finality principle becomes operative only after a judgment of the High Court has supplanted the judgment of a lower court; in such a circumstance the High Court is no longer competent to review or revise its own judgment, and it is likewise powerless to issue any notice for enhancement of sentence under its revisional powers in section 439(1). However, when the High Court, exercising its revisional power under section 439(1) over judgments of lower courts, issues a notice for enhancement of sentence and furnishes the accused with an opportunity to be heard—either personally or through counsel—under section 439(2), the provision of section 439(6) that permits the accused to show cause against his conviction becomes operative. That statutory right cannot be negated by resort to either section 369 or section 430 of the Code. Section 369, in terms, provides, “save as otherwise provided in this Code,” and section 439(6) constitutes an “otherwise” provision that is saved by this non-obstante clause contained in section 369. It is noteworthy that both amendments—those to section 369 and to section 439—were enacted by section 119 of Act XVIII of 1923, and the apparent purpose of making these amendments concurrently was to give effect to the accused’s right to show cause against his conviction as provided in section 439(6). The Court also observed that the right conferred by section 439(6) is not an unlimited or unfettered right, as noted by Justice Mahajan in Emperor v. Atta Mohammad (1) [1943] I.L.R. 25 Lah. 391 (F.B.). In jury trials, where an accused has been convicted by a jury’s verdict and is called upon under section 439(2) to show cause why his sentence should not be enhanced, he is entitled under section 439(6) to show cause against his conviction, but only to the extent permitted by section 423(2) of the Code, and he does not possess an unrestricted right to challenge the conviction on the basis of the evidence. The Allahabad High Court, in Emperor v. Bhishwanath (1), held that the combined effect of sections 439(6) and 423(2) is

In this case, the Court explained that the statutory provision allows the accused to challenge his conviction only on the limited ground that the trial judge misdirected the jury or that the jury failed to understand the law as set out in the judge’s charge. The Court then noted that a similar view had been adopted by the majority of the Judges in The Superintendent and Remembrancer of Legal Affairs, Bengal v. Jnanendra Nath Ghose & Another (1). In that decision, it was held that a person who had entered a plea of guilty under section 271(2) of the Criminal Procedure Code could, when showing cause against a notice for enhancement of sentence, attack only the propriety or legality of the sentence; the accused could not withdraw the pleaded-guilty position or treat that plea as a confession of the facts charged. The Court observed that there exist two other judgments – one of the Bombay High Court in Emperor v. Ramchandra Shankarshet Uravane (3) and another of the Rangoon High Court in Nga Ywa and another v. King-Emperor (4) – which appear to be at odds with the ratio decidendi of the Allahabad and Calcutta High Court decisions cited above. However, the Court stated that it was not required to resolve any apparent conflict between those authorities. The Court then clarified that the right given to an accused by section 439(6) of the Criminal Procedure Code arises when a notice for enhancement of sentence is served on him, and that the accused may exercise that right regardless of any earlier events, unless and until a High Court has already rendered a judgment, after a full hearing on notice, pronouncing against his conviction. The Court further emphasized that this right is not limited by any earlier provisions of section 439, nor by the provisions of sections 369 or 430 of the Criminal Procedure Code. Consequently, the Court concluded that the decision of the High Court of Bombay in the appealed case was erroneous and should be set aside. Accordingly, the appeal was allowed, the order of the Bombay High Court was reversed, and the matter was remanded to the High Court of Judicature at Bombay with a direction that the Court must permit the appellant to show cause against his conviction and dispose of the matter in accordance with law. The order of the Court therefore reads: the appeal is allowed; the order of the High Court of Bombay is set aside; and the case is sent back to the High Court with a direction to allow the appellant an opportunity to show cause against his conviction and to decide the case according to law.