JANGAL PRASAD Vs. STATE

JUDGEMENT

(1.) The only question to be decided in this appeal relates to the sentence imposed on the appellant, and it arises in the following manner. The appellant was tried by a Magistrate of Jabalpur on the charge of having committed an offence under S. 377, Penal Code and was found guilty. While sentencing the appellant, the Magistrate observed as follows :

(2.) The sole point urged in this appeal is that the order of the High Court amounted to an enhancement of the original sentence, and it should not have been passed without giving notice to the appellant and hearing him in the matter as is provided in S. 439 Criminal P. C., and settled by a long course of decisions. It was urged on behalf of the State that there is no question of enhancement of sentence in this case. Since all that has happened is that an illegal sentence which was a nullity has been set aside by the High Court, and the court of revision which has all the powers of a court of appeal, has imposed a proper sentence on the appellant. The question is not free from difficulty, and is further complicated by the fact that the law does not indicate, except indirectly in S. 395, Criminal P. C., what sentence of imprisonment would be equivalent to a sentence of whipping. On the whole, however, we are inclined to think that the High Court should not have passed the order radically changing the mode of punishment and seriously affecting the accused, without giving him an opportunity to show cause against it.

(3.) There is a note dated 21-8-1951, in the order sheet of the High Court, to the following effect: