Judgement

Consolidated Appeal (No. 42 of 1934) by special leave from four orders of the High Court made in May and June, 1933.

The orders appealed from were made by Lort-Williams and McNair JJ. upon petitions of appeal, under

s. 419 of the Code of Criminal Procedure, by which the respondents severally appealed against convictions and sentences ordered by a criminal Court of first instance. In each case when the petition was before the Court for the purposes of s. 421 of the Code, and the prosecution not represented, the Court ordered a reduction of the sentence without the notices required by s. 422 having been given, or the record sent for in accordance with s. 423 of the Code.

The facts, the material sections of the Code, and the grounds upon which the learned judges supported the orders appear from the judgment of the Judicial Committee.

Upon the application for special leave to appeal reference was made to observations in the judgment of the Board in Reg. v. Bertrand (( 1867) 1 P. C. 520, 530.), in which the Crown successfully appealed by special leave upon a question of criminal procedure in New South Wales.

The Crown did not ask that there should be any interference with the reduced sentences.

1935. Feb. 5. Dunne K.C. and Wallach for the Crown. When an appeal has not been summarily dismissed under s. 421, it is imperatively provided by s. 422 that the notices there prescribed are to be given, and by s. 423 that the record is to be sent for if it is not already in Court. Those sections not having been complied with the orders were necessarily invalid. The revisional powers under s. 439 could not be exercised at that stage so as to exclude compliance with ss. 422 and 423. The orders do not purport to have been made under s. 439.

Abdul Majid and Pringle for respondents. Having regard to the statement by Lort-Williams J. it is to be presumed that the Court was intending to exercise its powers under s. 439, though the orders as drawn up omitted so to state. The requirements of s. 422 and s. 423 apply only to the appeal proceeding ; a failure to comply with them does not exclude the revisional powers. Those powers are additional to the powers in the appeal. For instance, a sentence can be enhanced in revision although it cannot in the appeal. [Reference was made to cases mentioned in the judgment.]

March 1. The judgment of their Lordships was delivered by

LORD THANKERTON. These are consolidated appeals by special leave from four judgments of the High Court of Judicature at Fort William in Bengal dated respectively May 29, May 29, May 31, and June 7, 1933, which reduced the sentences passed on the respective respondents by the respective criminal Courts of first instance on March 25, February 28, April 1, and March 18, 1933.

In each case the respective respondents presented petitions of appeal to the High Court against both the conviction and the sentence, in exercise of the statutory right conferred on them by the Code of Criminal Procedure, and the question in the present appeals is whether the orders of the High Court in each of the four cases, by which the sentences were reduced, were in conformity with the requirements of the Code. The Crown, as appellant, maintains that the orders were passed in violation of the statutory provisions and were beyond the jurisdiction of the High Court. The Crown desires to test the validity of the procedure adopted by the High Court, but does not ask for any interference with the reduction of the sentences made by these orders.

The sections of the Code which prescribe the procedure to be followed on presentation of a petition to the Appellate Court— in this instance, the High Court—are as follows —

" 419. Every appeal shall be made in the form of a petition in writing presented by the appellant or his pleader, and every such petition shall (unless the Court to which it is presented otherwise directs) be accompanied by a copy of the judgment or order appealed against, and, in cases tried by