The main legal point established in the judgment is that the High Court has the power of revision over the criminal proceedings of inferior courts, and a convicted person is entitled to show cause against his conviction and sentence, especially when there is a likelihood of the sentence being enhanced.

Spencer, J.

1. This criminal revision case originated in a reference made by the District Magistrate, Trichinopoly, under Section 438(1), Cr.P.C. recommending an enhancement of the sentences which-were reduced in consequence of the appeal of the accused to the Sub-Divisional Magistrate. Their appeal was decided on August 10th, 1923. A revision petition (Cr.R.C. No. 561 of 1923) against their conviction was presented to this Court by Mr. V.L. Ethiraj and was dismissed by Mr. Justice Krishnan on 15th August, 1923, without giving notice to the Public Prosecutor.

2. Dr. Swaminadhan took the preliminary objection to our proceeding to hear the present criminal revision case, that this Court having already disposed of a revision petition in respect of the same criminal case is functus officio and cannot re-open the matter. In other words he argued that the High Court has no power of revision over the criminal proceedings of inferior Courts. He referred to Section 369, Cr.P.C. and to In re Runga Rao (1912) 23 M.L.J. 371 and an unreported case In re Kunhammad Haji A.I.R. 1923 Mad. 426 in which it was held that an order passed in the exercise of the High Courts powers of criminal revision could not be reviewed or revised. The only exception to this rule recognised by the law as stated in In re Runga Rao (1912) 23 M.L.J. 371, is that a Court of Appeal may re-admit and hear a criminal appeal dismissed for default of appearance, as such a dismissal is not a proper disposal of the appeal. In In re Kunhammad Haji A.I.R. 1923 Mad. 426 this exception was held to apply also to criminal revision petitions dismissed for default of appearance, although the earlier ruling excluded them.

3. I am of opinion that the preliminary objection is not sound. If there had been any adjudication by Krishnan, J., on the question of sentence, I should have no hesitation in refusing to let the same question be re opened before us. But there is no indication from his brief order in Cr.R.C. No. 561 of 1923 that the learned Judge applied his mind to the extent of the sentence and there is no affidavit before us declaring that it was argued before him. It is most improbable that upon the accuseds application which was disposed of without notice to the Public Prosecutor any question of enhancing the sentences was raised, and if the Judge had considered that any of the sentences should be enhanced, he would have been bound to give the parties notice under Section 439(2) of his intention of dealing with the question of enhancement. No notice was issued. Ordinarily a Judge disposing of a revision petition filed by a convicted person or his Pleader against the propriety of his conviction cannot be said to be adjudicating on the question of enhancing the sentence. A Court exercising its revisional powers upon a revision petition ordinarily deals with the points raised in the petition and has no occasion to travel outside them and consider the whole case upon its merits, as the Court that tries the accused and the Court that hears the appeal, if any, does. It might be otherwise in a revision case taken up by the Court suo motu. But this is not such a case.

4. In the amended Cr.P.C. there is a new sub-section to Section 439 which runs thus:

Notwithstanding anything contained in this section any convicted parson 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.

5. This is a very valuable and necessary provision for securing the liberty of the subject. In a trivial case an accused person, conscious of the justice of his conviction, might possibly prefer to submit to a light sentence rather than incur the expense of moving the High Court to interfere in revision in consequence of an error of jurisdiction of the Trying Court. Bui if there was a likelihood of the sentence being enhanced, say from a small fine to a term of imprisonmen