Judgment

MITTER,J.:- The six appellants in this appeal were charge sheeted for having committed offences punishable under Sections 147, 447 and 325 read with Section 149 of the Indian Penal Code in the Court of the Judicial Magistrate. First Class. Deglur, District Nanded. Considering the evidence on record the Magistrate held that the accused were members of an unlawful assembly on September 27 1965 at the village school Chotwadi with the common object of causing injuries to the complainant. He also found that the accused had committed house trespass into the compound of the school and actually caused grievous hurt to the complainant, a school teacher, in pursuance of the common object of their unlawful assembly. He convicted the accused for offences under Sections 147, 447 and 325 read with Section 149, I. P. C. and sentenced each of them to suffer rigorous imprisonment for 15 days and to pay a fine of Rs. 50 and in default of payment of fine to suffer further rigorous imprisonment for 15 days on the first count under Section 447 read with Section 149, I. P. C. and sentenced each of them to suffer rigorous imprisonment for six months and to a fine of Rs. 200 or in default of payment of fine to suffer further rigorous imprisonment for one month on the second count under Section 325 read with Section 149, I. P. C. He did not pass any fresh sentence on the third count under Section 147. I. P. C. He directed that the substantive sentences of imprisonment passed against accused on both counts should run concurrently. He also directed that in case the amount of fine was recovered, Rs. 200 should be paid to the complainant Murlidhar as compensation for the injury sustained by him under Section 545 (1) (b) of the Code of Criminal Procedure. The accused went up in appeal which was heard by the Additional Sessions Judge at Nanded. The Sessions Judge allowed the appeal and set aside the orders of conviction and directed the accused to be set at liberty. The order for payment of fine also was set aside. The State went up in appeal against the order of acquittal to the High Court. The appeal was allowed by the High Court and the order of acquittal was set aside. The High Court convicted all the six accused under Sections 147 and 447 and 325 read with Section 149 I P. C and taking the view that the assault on the village teacher was wanton and unprovoked proceeded to deal with the culprits more firmly than the trying Magistrate. It passed sentence on the second accused holding him to be responsible for the blow which caused the fracture of the left ulna of the complainant, to one year s rigorous imprisonment and a fine of Rs. 300 and two months further rigorous imprisonment in default under Section 325 read with Section 149 of the Penal Code. It also held that the remaining accused had played a comparatively minor part and injuries inflicted by them were simple. The sentence passed on each of them was six months rigorous imprisonment and a fine of Rs. 100 and one month s further imprisonment in default under Section 325 read with Section 149, I. P. C. A. further sentence of three months imprisonment was passed on all the accused for the offence under Section 447 read with Section 149 No separate sentence was passed under Section 147. This Court granted special leave to appeal to the accused "limited to the question of legality of sentence passed by the High Court".

2. Counsel on behalf of the appellants put forward his argument in a twofold manner. His first contention was that it was not open to the High Court exercising appellate jurisdiction under Section 423 (1) (a) of the Code of Criminal Procedure to enhance the sentence passed by the trial Magistrate. The second branch of his argument was that even if the High Court was competent to do so, the appellants should have been asked to show cause why the sentence imposed on them by the Magistrate should not be enhanced and in the absence of such an opportunity, no enhancement of sentenc