( 1 ) THIS is an application for revision for enhancement of sentence awarded by the additional Sessions Judge, Satna, in Sessions Trial No. 8 of 1963. The revision petition was filed on 11th January 1965 in rather peculiar circumstances, while the judgment of the Sessions Court is dated 7 December 1963. The applicant-State has also made an application for condonation of delay.

( 2 ) THE non-applicant and three others were committed to the Court of Session under Section 394/397, Penal Code, for having allegedly committed robbery. So far as the non-applicant is concerned, the Additional Sessions Judge found him guilty and convicted him under Section 394, read with Section 397, Penal Code, (as he used a deadly weapon), and sentenced him to suffer rigorous imprisonment for four years. Two of the other three accused were convicted under Section 394, penal Code, and sentenced to two years rigorous imprisonment; the third was acquitted.

( 3 ) NARAINDATTA (non-applicant) and the other two convicted accused appealed to this Court. That appeal (Criminal Appeal No. 772 of 1963) was disposed of by a learned Single Judge. The conviction of the non-applicant under Section 394/397, penal Code, was maintained. The sentence awarded to him was reduced to rigorous imprisonment for three years. We are not concerned with the other two appellants.

( 4 ) IT is conceded both by the learned Deputy Government Advocate and the learned counsel for the accused that the provision relating to minimum sentence contained in Section 397, Penal Code, completely slipped from their minds. That judgment was delivered on 19th December 1964. It appears that subsequently the mistake came to light. On 24 December 1964, the Deputy Government Advocate made an application under Section 561a, Criminal Procedure Code, to bring to the notice of this Court that "by an oversight'' a sentence had been awarded to the non-applicant, which was not legal and that the error was apparent on the face of the record. It was prayed that necessary orders be passed to bring the sentence in accordance with law. Then, on 11th January 1965, evidently recalling that the learned Additional Sessions Judge had also passed a sentence of four years only, which was less than the minimum prescribed under Section 397, Penal Code, the state made this application for revision.

( 5 ) WE now proceed to consider the revision petition.

( 6 ) IT seems to us that the position of the law is clearly this: (1) When an accused person appeals to the High Court against an order of his conviction and the High court, after issuing notice to the respondent, maintains the conviction and also maintains or reduces the sentence, no subsequent application by the State for enhancement of sentence can be entertained. The State has full liberty to raise the question of enhancement of sentence, if it so desires, in the appeal itself. Once the judgment of the appellate Court has been pronounced, the State is precluded from subsequently raising the question of enhancement of sentence. (2) But, where the appeal of the convict is summarily dismissed under Section 421, Criminal procedure Code, such dismissal does not operate so as to preclude the State from applying for enhancement of sentence. However, on a notice of enhancement, being issued, the convict acquires a new right under Section 439 (6), Criminal procedure Code, to show cause against his conviction inspite of the dismissal of his appeal.

( 7 ) IN U. J. S. Chopra v. State of Bombay 1955-2 SCR 94 : ( (S) AIR 1955 SC 633), bhagwati and Imam, JJ. , held that in the case of a summary dismissal of the convict's appeal, although the order of the High Court is final and is not subject to review or revision, it does not tantamount to a judgment replacing that of the lower Court; it is merely a refusal to, entertain the appeal. That being so, even after such dismissal, it is open to the State to apply for a revision of the order of the lower Court; regarding sent