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SUPREME COURT OF INDIA
13th December 1955
BOSE, VENKATARAMA AYYAR AND CHANDRASEKHARA AIYAR, JJ.
Jayaram Vithoba and another, appellants
Versus
The State of Bombay, Respondent.
Criminal Appeal No. 75 of 1954
Advocates appeared
Mr. P. K. Chatterjee Advocate, for Appellants; Mr. N. S. Bindra, Senior Advocate, (MR. P. G. Gokhale, Advocate with him), for Respondent.
The appellant was convicted under section 4(a) of the Bombay Prevention of Gambling Act, 1887, and sentenced to three months rigorous imprisonment. He was also found guilty under section 5 of the Act, but was awarded no separate sentence under that section. The second appellant was found guilty under section 5, and sentenced to three months rigorous imprisonment. The appellants took the matter in revision to the High Court, which set aside the conviction of the first appellant under section 4(a) but confirmed that under section 5; and awarded a sentence of three months rigorous imprisonment under that section. In the .appeal before the Supreme Court it was contended on behalf of the first appellant that as the High Court had set aside his conviction under section 4(a) of the Act, it should have set aside the sentence passed on him under that section, and that it had no power under-the Code of Criminal Procedure to impose a sentence under section 5, when none such had been passed by the Magistrate.
Held: (I) When there is a conviction for more offences than one, there are distinct findings, in respect of each of them, and when section 423 (I) (b) speaks of a finding being reversed or altered by the Court of appeal, it has reference to the finding in respect of each of the offences. When, therefore, the High Court set aside the conviction under section 4(a) and affirmed that under section 5, there are two distinct findings, one of reversal and another of affirmance, and there is no question of alteration.
(2) There is nothing about transposition of sentence under section 423 (-1) (b). It only provides for altering the finding and maintaining the sentence, and that can apply only to cases where the finding of guilt under one section is altered to a finding of guilt under another. The section makes a clear distinction between a reversal of a finding and its alteration, and provides that when there is a reversal, the order to be passed is
1. Dalip Singh v. State of Punjab, (1954) S.C.R. 145, 156: A.I.R. 1953 S.C. 364: Nar Singh v. State of Uttar Pradesh, (1955) 1 S.C.R. 238, 241 : A.I.R. 1954 S.C. 457 referred to.
one of acquittal, discharge or retrial, whereas when there is an alteration, the order to be passed is one of maintaining, reducing or altering the sentence.
On the language of the section, the imposition of a sentence under section 5 by High Court cannot be justified.
(3) When a person is tried for an offence and convicted, it is the duty of the Court to impose on him such sentence, as is prescribed there for. The law does not envisage a person being convicted for an offence without a sentence being imposed there for. When the trial magistrate convicted the first appellant under section 5, it was plainly his duty to have imposed a sentence. Having imposed a sentence under section 4(a), he obviously considered that there was no need to impose a like sentence under section 5 and to direct that both the sentences should run concurrently. But, in strictness, such an order was the proper one to be passed. The appellants then took the matter in revision to the High Court, and contended that their conviction under section 5 was bad. The High Court went into the question on the merits, and found them guilty under that section. It was the duty of the High Court to impose a sentence under section 5, and that is precisely what it did. This power is preserved to the appellate Court expressly by section 423 (1)d) which enacts that it can "make any amendment or any consequential or incidental order that may be just or proper. ,
(4) The order of the High Court could not be held to be bad for want of notice under S. 439 (2) Cr. P.C. The law does not prescribe that any particular formalities should be complied with, before action is taken under that section. It only provides that the accused should have an opportunity of showing cause against the conviction and enhancement, and as the first appellant was heard on both these questions, the requirements of the section were satisfied.
Judgement
VENKATARAMA AYYAR, J.: The first appellant was, at the relevant date, in possession of room No. 10 in House No. 334, Bazar Road, Bandra, Bombay. On information that this room was being used as a gaming house, Mr. Bhatt, Sub-Inspector of Police, raided it on 19-9-1952, and found the two appellants and four other in possession of gaming instruments. All of them were prosecuted under section 5 of the Bombay Prevention of Gambling Act (Bombay Act IV of 1887), hereinafter referred to as the Act, for being present in a gaming house for the purposes of gaming, and the first appellant was in addition, charged under S. 4(a) of the Act, for keeping a gaming house. The Presidency Magistrate who tried the case, found the first appellant guilty under section 4(a) of the Act, and sentenced him to three months rigorous imprisonment. He also found him guilty under section 5 of the Act, but awarded no separate sentence under that section. The second appellant was found guilty under section 5, and sentenced to three months rigorous imprisonment. The appellants took the matter in revision to the High Court, which set aside the conviction of the first appellant under section 4(a) but confirmed that under Section 5, and awarded a sentence of three months rigorous imprisonment under that section. As regards the second appellant, both the conviction and sentence were confirmed. Against this order, the present appeal by special leave has been preferred.
2. Both the courts below have concurrently found that the appellants were present in a gaming house for the purpose of gaming, and have thereby committed an offence punishable under section 5 of the Act and that finding is not under challenge before us. The only contention that has been raised before us - and it arises only as regards the first appellant- is that as the High Court had set aside his conviction under section 4(a) of the Act, it should have set aside the sentence passed on him under that section, and that it had no power under the Code of Criminal Procedure, to impose a sentence under section 5, when none such had been passed by the Magistrate.
This contention is based on the terms of section 423. Under that section, when there is an appeal against a conviction the court has the power under sub-clause (1) (b) either (1) to reverse the finding and sentence, and acquit or discharge the accused, or order his retrial or (2) to alter the finding but maintain the sentence, or (3) to reduce the sentence with or without altering the finding, or (4) to alter the sentence with or without either reducing the sentence or altering the finding, but , subject to section 106(3), not so as to enhance the same.
It is urged that the present case does not fall within any of the four categories mentioned above as the conviction under section 5 has been affirmed, and no question of reduction or alteration of sentence arises, as none had been imposed under that section by the Magistrate, and that accordingly the order of the High Court could not be justified under any of the provisions of the Code. It is further contended that the award of sentence under section 5 amounted in the above circumstances to an enhancement, and was, in consequence, illegal, as no notice had been issued therefor, as required by law.
3. In support of this contention, the decision in - Ibrahim Haji v. Emperor . AIR 1940 Bom 129 (A) is relied on. In that case, as in the present, the accused was convicted both under section 4(a) and section 5 of the Act, but a sentence was passed under section 4(a) and none under section 5. On appeal, the learned Judges set aside the conviction under section 4(a) and on the question of sentence, observed that the Magistrate was wrong in not having imposed a separate sentence under section 5, and continued:
"He ought to have imposed a sentence under each section; but as he has not imposed a sentence under section 5, we cannot impose one ourselves, for that would be enhancing the sentence".
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