Judgement

Petition for special leave to appeal.

On August 14, 1933, the petitioners and others were convicted by the Additional Sessions Judge of Cawnpore at Banda under s. 148 and s. 302 of the Penal Code, read with s. 149, of rioting armed with deadly weapons and with murder, and were sentenced to transportation for life.

They appealed to the High Court of Allahabad. The appeal came before Thorn and Kisch JJ. on February 20, 1934, when, before considering the evidence, the Court directed that the appellants should be given notice calling upon them to show cause why the sentences should not be enhanced.

The case subsequently came before Thorn and Harries JJ. as " Criminal Revision Petition No. 195 of 1934 connected with Criminal Appeal No. 855 of 1933." After hearing the arguments the learned judges dismissed the appeals, and with regard to the present petitioners enhanced the sentences to death.

1934. Dec. 6. Sidney Smith for the petitioners. The High Court had no jurisdiction to enhance the sentences having regard to the course followed. The Code of Criminal Procedure by s. 423 expressly provides upon an appeal against a con viction the sentence cannot be enhanced. It is only under the revisional power given by s. 439 upon the proceeding in the lower Court being brought to its notice that

Law Rep. 62 Ind. App. 36 ( 1934- 1935)

In Re C hunbidya V. - 196

the Court can enhance a sentence. The words in the section “or which otherwise comes to its notice" do not include the case where the Court has notice only by the petition of appeal. Even if they do, it is only after hearing the appeal that the Court can call upon the appellant to show cause why the sentence should not be enhanced. A contrary view would be incongruous having regard to the express provision of s. 423 Emperor v. Mangal. (( 1924) I. L. R. 49 B. 450 [Recently disapproved Emperor v. Babu Pandurang ( 1934) I. L. R. 58 B. 392].) It is conceded that the course followed in this case was in accordance with the practice in other High Courts. By the Code of 1872 all appellate Courts had power to enhance the sentence upon an appeal. The Codes of 1882 and 1898 took away that power and enacted that it is only by the High Court acting in revision that enhancement can be ordered. Sect. 439 should not be construed so as to impinge upon that important alteration in criminal procedure. [Reference was made also to Kishan Singh v. The King-Emperor. (( 1928) L. R. 55 I. A. 390.)]

Wallach for the Crown. The clear words of s. 439 cannot be given the limited meaning contended for. By s. 439, sub-s. 6, a convicted person showing cause against an enhancement of sentence is entitled also to show cause against , his conviction. A postponement of notice to enhance until after the hearing of the appeal might therefore involve going into all the facts again. In a petition for special leave to appeal by Beri Singh and others heard and rejected by the Board on October 22 last, the shorthand note shows that the then petitioners put forward the same contention as the present petitioners and relied unsuccessfully upon Emperor v. Mangal. (I. L. R. 49 B. 450.) [He was stopped.]

Sidney Smith in reply. The notice to the petitioner in this case was headed as a notice in the appeal, though the matter was heard as a revision case.

The judgment of their Lordships was delivered by

LORD ATKIN. This is an application for special leave to appeal from a judgment of the High Court of Judicature at Allahabad. The question arose in this way. The petitioners were tried before the Additional Sessions Judge of Cawnpore on a charge of murder, and they were in fact convicted of murder. It is unnecessary to go into the facts of the case except to say that the particular act of which they were found guilty was that, with other people, they assaulted the deceased and, after having beaten him severely, laid him down and cut off his foot with an axe and left him there to bleed to death. The Sessions Judge having convicted t