Romesh Chandra Arora vs The State

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

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 6 October, 1959

Coram: A.K. Sarkar, M. Hidayatullah, S.K. Das

The judgment, authored by Justice S.K. Das and delivered by a Bench consisting of Justices A.K. Sarkar, M. Hidayatullah and S.K. Das, concerned an appeal filed under a certificate issued by the Punjab High Court pursuant to Article 134(1)(c) of the Constitution. The factual background, though unpleasant, was set out only insofar as it pertained to the questions before the Court. On 14 December 1954 a man identified only as X filed a written report with the Superintendent of Police, Delhi City, alleging that the appellant was molesting one of X’s daughters, threatening her, and sending obscene letters in an attempt to blackmail X for money. Certain letters were produced before the Superintendent, who forwarded the report to the Station Officer of the Karol Bagh police station with instructions to lodge a case under section 506 of the Indian Penal Code and to investigate the matter. The Station Officer carried out the investigation, prepared a charge‑sheet against the appellant and seized several of the letters that X claimed to have received. Those letters referred to photographs of X’s daughter; at least one letter stated that a sample photograph was enclosed. The photographs, later proved in evidence, were taken in the nude and were such that their public disclosure would undoubtedly damage the reputation of both the girl and her father.

During the investigation X testified that he initially tried to persuade the father and other relatives of the appellant to use their influence to halt the blackmail, but his efforts yielded no compassionate response. In November 1954 X met the appellant and asked him to behave properly; the appellant replied that extorting money through blackmail of girls was his “profession” and warned that, unless hush money was paid, he would circulate the photographs to the girl’s relatives. The appellant was subsequently tried before a learned Magistrate exercising first‑class powers in Delhi on a charge under section 506 of the Indian Penal Code. The Magistrate found that the appellant had taken indecent photographs of the girl by feigning affection, and had threatened X by letter with the publication of those photographs with the intention of extracting money. Accordingly, the Magistrate convicted the appellant and sentenced him to one year of rigorous imprisonment on 18 May 1956.

The appellant filed an appeal against his conviction and sentence on 9 June 1956, preferring it to the Sessions Judge of Delhi. While the appeal was pending, on 14 June 1956 Justice Kapur of the Punjab High Court, acting on his own motion, called for the record of the case after learning of it from a newspaper report and ordered that the appellant be issued a notice to show cause why his sentence should not be enhanced. This action appears to have been taken under sections 435 and 439 of the Code of Criminal Procedure. Subsequently, on 17 August 1956 the appeal that was before the Sessions Judge was transferred to the High Court for hearing, an order likely made under section 526(1)(e)(iii) of the Code of Criminal Procedure, although the precise terms of the June and August orders were not reproduced in the official law reports. The High Court heard both the appeal and the request for enhancement together, and by a judgment dated 21 December 1956 affirmed the finding of the learned Magistrate, upheld the conviction, dismissed the appeal and increased the sentence to two years of rigorous imprisonment. On or about 10 January 1957, an …

After a newspaper report disclosed the existence of the case, the judge of the Punjab High Court examined the record and ordered that a notice be issued to the appellant requiring him to show cause why his sentence should not be increased; this action was apparently undertaken under sections 435 and 439 of the Code of Criminal Procedure. Subsequently, on the seventeenth day of August, 1956, the appeal that was then pending before the Sessions Judge of Delhi was transferred to the High Court for hearing, an order that appears to have been made under section 526 one‑e‑iii of the Code of Criminal Procedure, although the precise wording of the June fourteen and August seventeenth orders is not available because they were not reproduced in the official paperbook. The High Court considered both the appeal and the rule for enhancement together, and by a judgment pronounced on the twenty‑first day of December, 1956, it affirmed the learned Magistrate’s finding, upheld the conviction, dismissed the appellant’s appeal, and increased the term of rigorous imprisonment to two years. Around the tenth of January, 1957, an application was filed on behalf of the appellant seeking a certificate that the case was suitable for appeal to the Supreme Court; the application advanced four principal allegations: first, that the learned Magistrate’s finding, which had been affirmed by the High Court, actually implicated the offence under section 384 read with section 511 of the Indian Penal Code, a provision carrying a maximum punishment of only eighteen months; second, that the High Court lacked authority to issue a notice for enhancement of the sentence while an appeal against the conviction and sentence was still pending before the Sessions Judge; third, that the order transferring the appeal to the High Court was not validly made and, in any event, had been issued without giving the appellant any notice; and fourth, that the procedural steps taken had deprived the appellant of his right to obtain first a decision from the court of appeal and subsequently another decision from the High Court exercising its revisional jurisdiction. By an order dated the fourteenth of January, 1957, Justice Falshaw of the Punjab High Court granted the requested certificate, observing that although the aforementioned grounds had not been raised before him at the time the appeal and the rule for enhancement were heard, they could legitimately be raised and therefore the case was fit for appeal to the Supreme Court. The present appeal therefore stands before this Court on the basis of that certificate. Counsel for the appellant reiterated the same four grounds that had been set out in the application for the certificate under Article 134 one‑c of the Constitution. The Court now proceeds to examine those grounds in the sequence in which they were presented, after counsel for the appellant has drawn attention to the charge that had been framed against the appellant by the learned Magistrate.

In this case the learned Magistrate framed a charge that, in substance, alleged that during the years 1953 and 1954 the appellant had committed the offence of criminal intimidation by threatening X and X’s daughter with injury to their reputation through the prospective publication of nude photographs, and that the appellant’s purpose in doing so was to cause alarm to them. It was observed that the charge did not contain any reference to blackmail or extortion. The argument presented before the Court was that, although the charge expressly mentioned the appellant’s intent to cause alarm only to X and his daughter, the factual finding of the trial court was that the appellant had attempted to extort money from X by threatening to publish the objectionable photographs. The appellant’s counsel therefore contended that the conviction under section 506 of the Indian Penal Code was erroneous and that, had a proper charge been laid under sections 384 read with 511, the appellant might instead have been found guilty of those provisions. The Court was unable to accept that contention. While agreeing with the High Court that the charge was not as clear as it could have been, the Court noted that the charge did state that the offence of criminal intimidation was committed by threatening X and his daughter with injury to their reputation by the possible publication of indecent photographs, and that the stated intent was to cause alarm to X and his daughter. The Court further observed that, on the basis of the evidence accepted by both the trial Magistrate and the High Court, the real intention behind the threatened publication was to compel X to pay “hush money.” Section 506 prescribes the punishment for the offence of criminal intimidation, which is defined in section 503. For present purposes the Court explained that section 503 comprises two essential elements. The first element requires a threatened act that would cause injury to the person, reputation or property of another, or to the person or reputation of someone in whom the threatened person has an interest. The second element concerns the intent of the threat and is divided into two categories: one category where the intent is merely to cause alarm to the person threatened, and a second category where the intent is to compel the threatened person to do something he is not legally bound to do, or to refrain from doing something he is legally entitled to do, as a means of averting the threatened consequence. In the present case the findings clearly satisfied the first part, as the appellant had threatened to publish the photographs, thereby endangering the reputation of X and his daughter. Regarding the intent, the Court held that it fell within the second category, namely the intention to force X to pay hush money, an act to which X was under no legal obligation. The Court acknowledged that the threat of publication would inevitably have caused alarm to X, but clarified that the appellant’s principal purpose was not merely to cause alarm but to extort money.

In this case, the appellant had threatened X in order to obtain hush money. It sometimes happens that the same conduct can satisfy the definition of one offence under the Indian Penal Code in one respect, while, when considered in its entirety, it may also fall within the definition of a different offence. The Court recognised that the offence of extortion defined in section 383 and the offence of criminal intimidation defined in section 503 are clearly distinct. The Court noted that an extensive discussion of those differences was unnecessary for the present matter. What was essential, according to the Court, was that the finding of the learned Magistrate— a finding that the High Court subsequently affirmed— established that the appellant was clearly guilty of criminal intimidation. Consequently, the Court held that the conviction of the appellant under section 506 was proper. The Court also concurred with the High Court that any possible defect in the charge concerning the appellant’s intent did not prejudice the appellant, because he was fully aware of the prosecution’s case and had a full opportunity to rebut the evidence presented against him.

Turning to the second point, counsel for the appellant referred to sections 435 and 439 of the Code of Criminal Procedure. The Court summarized section 435, omitting non‑essential language, as providing that the High Court may call for and examine the record of any proceeding before any inferior criminal court within its local jurisdiction in order to determine the correctness, legality, propriety, or regularity of any finding, sentence, or order recorded by that inferior court. Likewise, section 439, again paraphrased to exclude extraneous material, allows the High Court, when it has called for the record of a proceeding, to exercise, at its discretion, any of the powers of a court of appeal, including the power to enhance the sentence. The Court observed that, from the material on file, the High Court had called for the record on 14 June 1956 to verify the propriety of the sentence imposed by the learned Magistrate. The Court could not ascertain from the record that the High Court knew that, only a few days earlier, the appellant had lodged an appeal before the Sessions Judge of Delhi. The appellant’s counsel argued that, while an appeal was pending before the Sessions Judge, the High Court lacked authority to call for the Magistrate’s record to examine the sentence’s propriety. Counsel further contended that the sentence given by the learned Magistrate was itself a point of consideration in the appeal before the Sessions Judge, and that the phrase “any proceedings of such inferior court” in section 435 could not refer to the Magistrate’s court when an appeal was still pending before the Sessions Judge. Moreover, counsel submitted that, under the circumstances, the power conferred by section 435 to call for a record could be exercised only after the Sessions Judge had dealt with the appeal, and only with respect to the proceeding before that Sessions Judge. The Court found these contentions unconvincing, noting that on 17 August 1956 the appeal pending before the Sessions Judge had been transferred to the High Court for hearing, an order that the Court subsequently held to be valid.

In this case counsel for the appellant argued that the sentence imposed by the learned magistrate formed one of the matters that could be examined only after the appeal before the Sessions Judge of Delhi had been finally decided. According to that submission the question of whether the magistrate’s sentence was proper could not arise while the appeal was still pending before the Sessions Judge. The counsel further contended that the expression “any proceedings of such inferior court” found in section 435 of the Criminal Procedure Code could not be applied to the magistrate’s proceedings when an appeal was already pending before the Sessions Judge. He therefore submitted that the power conferred by section 435 to call for the record of any proceeding before an inferior criminal court could be exercised only after the Sessions Judge had dealt with the appeal, and that any such power could be exercised in respect of the proceeding before the Sessions Judge of Delhi and not in respect of the magistrate’s proceeding.

The Court did not accept these contentions. It observed that the arguments ignored the important development that occurred on 17 August 1956, when the appeal that was pending before the Sessions Judge of Delhi was transferred to the High Court for hearing. Assuming, as the Court later held, that the transfer order was valid, the legal position became that the High Court was then in possession of both the appeal preferred by the appellant and the rule for enhancement of the sentence, the latter having been issued after the High Court had called for the record under section 435. The Court noted that sub‑section (2) of section 439 of the Code provides that no order under section 439 may be made to the prejudice of an accused unless the accused is given an opportunity to be heard either personally or through counsel. Sub‑section (6) further provides that when a convicted person is given an opportunity to show cause why his sentence should not be enhanced, he is also entitled to show cause against his conviction. In the present case the notice to show cause as to enhancement was issued pursuant to sub‑section (2) of section 439, and consequently the appellant was entitled to argue that the conviction itself was erroneous. Thus the entire controversy, including the conviction and the sentence, remained before the High Court. In these circumstances the distinction that counsel sought to draw regarding the meaning of “such inferior court” was unnecessary. When the High Court was seised of the appeal, the inferior court from which the appeal arose was plainly the magistrate’s court that had convicted and sentenced the appellant; after the transfer, the Sessions Judge was no longer a party to the proceedings. The Court also rejected counsel’s attempt to narrow the scope of section 435. It held that if the High Court was unaware of the filing of an appeal, it remained free to call for the record of the magistrate’s proceeding in order to determine whether the sentence was proper.

The Court observed that the High Court was entitled to request the record of the proceeding before the Magistrate in order to determine whether the sentence imposed had been proper. When it became known to the High Court that an appeal was pending before the Sessions Judge of Delhi, the High Court could order that the appeal be withdrawn and transferred to itself so that the appeal and the rule could be considered together. The Court was unable to hold that the High Court acted illegally in adopting that course. The Court also clarified that it was not addressing the separate question of whether, exercising its combined powers of appeal and revision, a High Court could set aside an order of acquittal. That issue, which had been examined by the Privy Council in Kishan Singh v. The King Emperor [(1928) L.R. 55 I.A. 390] and discussed in various Indian High Court decisions, was not relevant to the present case, and therefore reviewing those authorities would serve no useful purpose.

The Court noted that clear authority existed in the Privy Council decision In re Chunbidya [(1934) L.R. 62 I.A. 36], which held that, under its revisional powers granted by section 439 of the Criminal Procedure Code, a High Court that had received the record of a criminal proceeding on appeal could require the appellant to show cause why the sentence should not be enhanced. After hearing and dismissing the appeal, the High Court could then enhance the sentence under its revisional power, even though section 423, as it stood before its 1955 amendment, barred such enhancement in an appeal. Although the appeal in the present case had originally been filed before the Sessions Judge of Delhi and later transferred to the High Court, the Court distinguished the factual background of In re Chunbidya but held that the distinction was not material. Provided the transfer was valid, the High Court was free to enhance the sentence while exercising its revisional power under section 439 after dismissing the appeal on its merits, and the appellant had indeed been given an opportunity to be heard on both the conviction and the sentence.

The appellant was heard on both the correctness of his conviction and the propriety of the sentence imposed on him. Section 423 of the Criminal Procedure Code outlines the powers of an appellate court when disposing of an appeal. That section was amended by the Code of Criminal Procedure (Amendment) Act, 1955 (Act 26 of 1955), which became effective on 1 January 1956. The amendment introduced sub‑section (1A), providing that where an appeal from a conviction lies to the High Court, the High Court may enhance the sentence notwithstanding any inconsistency with clause (b) of sub‑section (1). The Court clarifies that its decision does not rest upon sub‑section (1A) because those provisions are inapplicable in the present case. The appeal against the conviction did not lie originally to the High Court; it lay to the Sessions Judge of Delhi and reached the High Court only through a valid order of transfer made under section 526 of the Criminal Procedure Code. Consequently, the Court bases its authority to enhance the sentence on section 439 of the Criminal Procedure Code, which permits such a revision after the appellant has been given a chance to show cause regarding both his conviction and his sentence. The Privy Council decision in In re Chunbidya [(1934) L.R. 62 I.A. 36] concerned section 423 as it stood before the 1955 amendment. Had the appeal against conviction originally lain to the High Court, the High Court could have exercised its power under sub‑section (1A) of section 423, making an invocation of section 439 unnecessary. However, because the High Court received the matter through a transfer order, it was required to consider both the appeal and the rule that asked the appellant to show cause why the sentence should not be enhanced. The High Court addressed both matters in the judgment it delivered on 21 December 1956.

The question of the transfer order is answered by the provisions of section 527 of the Criminal Procedure Code, which the Court finds sufficient to reject the appellant’s contention. Section 527 provides, inter alia, that when it appears to the High Court that a transfer order is expedient for the ends of justice, the High Court may order that any particular case or appeal be transferred and tried before itself. This authority is expressly set out in section 526(i)(e)(iii), and subsection (3) of section 526 expressly authorises the High Court to act on its own initiative in issuing such an order. In the present case, the High Court had already issued a rule for the enhancement of the sentence, apparently without knowledge that an appeal had been filed before the Sessions Judge of Delhi a few days earlier. When that circumstance was brought to the High Court’s attention, the Court deemed it expedient for the ends of justice to transfer the appeal to itself. The Court does not agree with the counsel for the appellant that the transfer order was illegal. Although the record does not show that any notice was given to the appellant before the transfer, the High Court was within its powers to act on its own initiative, and the appellant cannot claim prejudice because he was fully heard on both the correctness of his conviction and the propriety of the sentence originally imposed by the learned Magistrate.

In this case the appellant had filed an appeal before the Sessions Judge of Delhi only a few days before the High Court issued a rule for enhancement of sentence. When the High Court became aware that an appeal was already pending before the Sessions Judge, it considered that transferring the appeal to the High Court would be expedient for the ends of justice and consequently ordered the transfer. The Court did not find merit in the appellant’s counsel’s contention that the High Court acted illegally in making the transfer. Although the record does not show that any notice of the transfer was served on the appellant beforehand, the relevant provisions empower the High Court to act on its own initiative. Moreover, the appellant had already been heard in full on both the correctness of his conviction and the propriety of the sentence originally imposed by the learned Magistrate, and therefore could not claim prejudice on the ground of the transfer.

The Court also examined the argument that the procedure deprived the appellant of his right to obtain first a decision from the Court of Appeal and subsequently a decision from the High Court in the exercise of its revisional jurisdiction. It held that no such deprivation occurred because the High Court possessed both the appeal and the rule for enhancement of sentence and heard the appellant fully with respect to each matter. Consequently, there was no violation of any right under the Code of Criminal Procedure. The Court further considered whether the High Court’s two orders dated 14 June 1956 and 17 August 1956 were illegal. It concluded that neither order was unlawful and cautioned that its judgment should not be taken as endorsement of a departure from the normal practice whereby the High Court exercises revision only after an appeal before an inferior court has been disposed of. The Court noted that in exceptional circumstances, when the ends of justice require that the appeal itself be heard by the High Court, it may lawfully exercise its revisional powers under section 439 of the Criminal Procedure Code to enhance the sentence after hearing and dismissing the appeal. The present case fell within such an exceptional category, and the procedure adopted by the High Court was neither illegal nor prejudicial to the appellant. Finding no sufficient grounds for interference, the Court held that the appeal was without merit and ordered its dismissal. The appeal was therefore dismissed.