1955 Supreme(SC) 31

SUPREME COURT OF INDIA
25th March 1955
S.R. DAS, BHAGWATI AND IMAM JJ.
U. J. S. Chopra, Appellant
Versus
State of Bombay.
Criminal Appeal No. 20 of 1954.
Advocates appeared
Mr. S. P. Verma Advocate for Appellant- Mr. M. C. Setalvad, Attorney- General for India (Mr. Porus A. Mehta and Mr G. Gokhale Advocates; with him), for the State.

Headnote:Sections 439 (1) (2) (6), 369, 430, 435, 421, 439-Summary dismissal of appeal by accused-State Government thereafter applying for enhancement of sentence-Notice issued under S. 439 (2) to accused to show cause against enhancement-Accused entitled to show cause against his conviction under S. 439 (6).

       The appellant was convicted by the Presidency Magistrate, Bombay of an offence under section 66(b) of the Bombay Prohibition Act, 1949. He preferred an appeal to the High Court which was summarily dismissed. After the dismissal of the appeal the State of Bombay made a Criminal Revision application to the High Court for enhancement of the sentence. Notice having been issued to the appellant under section 439 (2) of the Code of Criminal Procedure" the appellant claimed the right under ;section 439(6) to show cause against conviction.1 This the High Court did not permit him to do, but granted him a certificate of fitness for appeal under article 134(1) (c) of the Constitution.

       Held: (allowing the appeal) : per Das J.-Section 439(6) of the Cr. P.C. confers a new and a valuable right on the accused. The language used in sub-section (6) does not, in terms, place any fetter on the right conferred by it on the accused. This new right is not expressed to be conditioned or controlled by anything that may have happened prior to revision application under sub-section (1) for enhancement of sentence. Therefore, whenever there is an application for enhancement of sentence, a notice must issue under sub-section (2) to the accused person to show cause and whenever

       1. The relevant portion of Section 439 of the Code of Criminal Procedure reads as follows:

       "( I) 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.

       (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.

       such notice is issued, the accused person must, under sub-section (6), be given: an opportunity, in showing cause against enhancement, also to show cause against his conviction.

       (2) These can be no question that the finality embodied in S. 369 Cr. P.C. is only in relation to the Court which pronounces the judgment, for it forbids the Court, after it has signed its judgment, to alter or review the same. In other words, after pronouncing the judgment the Court that pronounces it becomes functus officio.

       Section 369 being subject to the other provisions of the Code must be read as subject to section 430 and as the finality enshrined in the latter section does not attach to decisions or orders made in revision by reason of Chapter XXXII being expressly excepted from its operation, the rule of finality embodied in section 369 cannot affect cases provided for in Chapter XXXII.

       (3) Section 439(6) must be read as controlling section 369 rather than the other way about.

       (4) Section 439(6) is also not, in terms, controlled by section 430.

       Section 430, in terms, applies to "judgments and orders" passed by an appellate Court. It has no application to "decisions or orders" made by the High Court in revision. The scope of Chapter XXXII having been enlarged by the addition of sub-section (6) to S. 439, the scope of the exception to S. 430 must also stand enlarged so as to include within the exception whatever, after the amendment of S. 439, may come within Chapter XXXII and, therefore, cases now coming within that Chapter must stand free from the rule of finality embodied in S. 430. Moreover, S.430 by its own terms saves the revision power of the High Court to enhance the sentence.

       (5) The theory of inherent incapacity must give way to the statutory capacity conferred by section 439 (6). If on a true construction a statute states, expressly or by necessary intendment, that one Judge or one Bench shall have jurisdiction and power to decide something, the theory of inherent incapacity of such Judge or Bench cannot be invoked to prevent the exercise of such jurisdiction and power merely on the ground that the decision which may be arrived at in exercise of this new jurisdiction or power may run counter to the previous decision arrived at by another Judge or Bench in exercise of another jurisdiction or power.

       (6) It is not correct to say that sections 421, 435 and 439 of Cr. P.C. give the court a discretion not to decide the appeal or revision brought before it. Discretion means sound discretion guided by law. It must be governed by rules of reason and justice and not according to private opinion; according to law and not by humour or caprice. It must not be arbitrary, vague and fanciful but must be legal and regular. The discretion conferred on the High Court does not authorise it to say that it will not look at the appeal or revision. It is the duty of the Court to look into the appeal or revision and decide it, although in the process of arriving at its decision it has a very wide discretion.

       (7) There is no reason for holding that there is a merger or replacement of the judgment of the trial Court into or by the judgment of the High Court only when the appeal or revision is heard on notice to the respondent and either allowed wholly or partially or dismissed but not when it is heard without notice to the respondent and dismissed summarily; for this purpose it makes no difference whether the dismissal is summary or otherwise, and there is a judgment of the High Court in all the three cases. The only difference in substance is that, in the first two cases the judgment is final qua both parties while in the third case, i. e., when an appeal or revision by the accused is ,summarily dismissed without issuing notice to, the State, the judgment is final only qua the accused who preferred the appeal or revision. This is based not on any technical doctrine of constructive- res judicata which has no application to criminal cases but on the general principle of finality of judgments. In the first two cases there can, after the judgment, be no further application by, the State for enhancement of sentence and therefore no question of the application of section 439 (6) can arise. In the last case, i.e." in the ,case of summary dismissal the judgment not being final qua the, State, the State may apply for enhancement of sentence and if it do5ls the accused becomes entitled again to show cause against his conviction also by reason of the special provisions of section 439 (6).

       Bhagwati and Imam J J.-(I) A judgment pronounced by the High Court in the exercise of its appellate or provisional jurisdictions after issue of a notice and a full hearing in the presence of both the parties would certainly be arrived at after due consideration of the evidence and all the arguments and would therefore be a judgment and such judgment when pronounced would replace the judgment of the lower court, thus constituting the judgment of the High Court the only final judgment to be executed in accordance with law by the Court below. When however a petition of appeal presented by a convicted person from jail is summarily dismissed under section 421 or a revision application made by him is dismissed summarily or in limine without hearing him or his pleader what the High Court does is to refuse to entertain the petition of appeal or the criminal revision and the order passed by the High Court" dismissed or rejected" cannot be said to be the expression of the opinion of the Court arrived at after due consideration of the evidence and all the arguments.

       (2) No notice for enhancement of sentence can be issued by the High Court when a judgment is pronounced by it after a full hearing in the presence of both the parties either in the exercise of its appellate or its revisional jurisdiction. Such a notice for enhancement of sentence can be issued by it either suo motu or at the instance of an interested party when the judgment of the lower court subsists and is not replaced by its own judgment in the exercise of its appellate or its revisional jurisdiction. When the judgment of the lower court has been under its scrutiny on notice being issued to the opposite party and on a full hearing accorded to both the parties notice for enhancement of sentence can only be issued by it before it pronounced its judgment replacing that of the lower court. When such hearing is in progress it is incumbent on the High Court or the opposite party to make up its mind before such judgment is pronounced whether a notice for enhancement of sentence should issue to the accused.

       (3) The question of enhancement of the sentence would only arise when the High Court in exercise of its revisional jurisdiction under section 439(1) thought it necessary to issue a notice for enhancement of sentence to the convicted person. Even though the court exercising its powers of revision would not be bound to hear any party personally or by pleader no order under section 439(1) enhancing the sentence could 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. In that event simultaneously with the opportunity given to him under sub-section (2) of showing cause why his sentence should not be enhanced he would be entitled in showing cause also to show cause against his conviction by virtue of the provision of section 439(6).