U J S CHOPRA Vs. STATE OF BOMBAY

JUDGEMENT

(1.) The appellant before us was on 9-12-1952 convicted by the Presidency Magistrate, 13th Court, Bombay, of an offence under S. 66 (b), Bombay Prohibition Act (Act 25 of 1949) and sentenced to undergo imprisonment till the rising at the Court and to pay a fine of Rs. 250. or to undergo rigorous imprisonment for one month. The appellant preferred an appeal to the High Court of Judicature at Bombay but his appeal was summarily dismissed by a Bench of that Court on 19-1-1953. After the dismissal of that appeal the State of Bombay made a Criminal Revision application to the High Court for enhancement of the sentence. Notice have been issued to the appellant under S. 439(2), Cr. P. C. learned counsel for the appellant claimed the appellant's right under S. 439(6) to show cause against his conviction. This the High Court did not permit him to do. The High Court, however, did not think fit to make any order for enhancement of sentence. On an application made on behalf of the appellant the High Court of Bombay has given leave to the appellant to appeal to this Court and granted a certificate of fitness under Art. 134 (1) (c), Constitution of India.

(2.) The question for our consideration in this appeal is whether the summary dismissal of the appeal preferred by the appellant precluded him from taking advantage of the provisions of S. 439(6) Cr. P.C. when he was subsequently called upon to show cause why the sentence imposed upon him should not be enhanced. The question depends for its answer upon a true construction of S. 439 . That, section, so far as it is material for our present purpose, reads as follows:

(3.) For a correct appreciation of the real meaning import and scope of the provisions of Sub-s. (6) of S. 439 it will be necessary to bear in mind its historical background. In England there is no provision for an appeal by the Crown either against an order of acquittal or for the enhancement of sentence. There the person convicted has a right of appeal both against his conviction and the sentence imposed upon him. Under the English criminal procedure, therefore, the question of enhancement of sentence only comes before the Court of Criminal Appeal when there is an appeal by the convicted accused. In this country the provisions relating to the Court's power of enhancement of sentence have undergone radical changes from time to time. Section 407; Cr. P. C. 1861 prohibited any appeal from acquittal. Express power was given to the appellate Court to reduce the sentence (Ss. 42 and 426) and like power was given to the Sudder Court as a Court of revision (Ss .405 and 406), I find no provision in that Code authorising the Sudder Court to enhance the sentence. The Code of Criminal Procedure of 1872, however by S. 272 permitted the Government to file an appeal from acquittal. This was repeated in S.417 of the Code of 1872 which corresponds to S. 417 of the present Code. Section 280 of the Code of 1872 expressly authorised all appellate Courts to enhance the sentence. This power of enhancement however was taken away from the appellate Courts by S. 423 of the Code of 1882 now reproduced in S.423 of the present Code and was vested in the High Court under S. 439 of the Code of 1882 to be applied in exercise at its revisional power. This has been continued in our present S. 439. This shows that the Legislature thought that this extraordinary power should be exercised only by the High Court and no other Court. A practice, however, appears to have grown up that in cases coming up before it for enhancement of sentence the High Court accepted the conviction as conclusive and proceeded to consider the question of enhancement of sentence on this basis, (See - 'Emperor vs. Chinto Bhairava', 32 Bom 162 (A)). Then came Act 18 of 1923 which, by S. 119, amended S. 439 by adding the present Sub-s. (6) and also amended S. 369 by substituting the words "save as otherwise provided by this Code or by any other law for the time, being in force, or, in the case of a High Court established by Royal Charter, by the Letters Patent of such High Court, no Court" for the words "No Court other than a High Court" with which the section formerly opened. The results of these amendments were (i) to make the judgment or order of the High Court passed in exercise of its original criminal jurisdiction final which it was not under S. 69 as it originally stood and to make this finality subject to the other provisions of the Code or of the Letters Patent of the High Court and (ii) to nullify the practice referred to above and to give a statutory right to an accused person who was threatened with the risk of having the sentence imposed on him by the trial Court or the lower appellate Court enhanced by the High Court in exercise of its revisional jurisdiction 'suo motu' or at the instance of the State or in exceptional cases even of any other interested person. Sub-section (6), therefore, confers a new and a very valuable right on the subject which is designed to be a safeguard against the State or other interested person making frivolous revision application for enhancement of sentence. The State or the person interested must, if they ask for an enhancement of sentence, be prepared to face the risk of the accused being altogether acquitted. It is the price or 'quid pro quo' which the State or other interested person must be prepared to pay for the right of privilege of making an application for enhancement of sentence. The language used in sub-S. (6) does not, in terms, place any fetter on the right conferred by it on the accused. This new right is not expressed to be conditioned or controlled by anything that may have happened prior to the revision application under sub-s(1) for enhancement of sentence. The section quite clearly says that whenever there is an application for enhancement of sentence a notice must issue under Sub-s. (2) to the accused person to show cause and whenever such notice is issued the accused person must under sub-s. (6) , be given an opportunity, in showing cause against enhancement, also to show cause against his conviction. The sub-section does not say that he will have this right to show cause against his conviction only if he has not already done so. If the accused person appealed against his conviction and sentence to an appellate Court not being a High Court and lost that appeal after a full hearing in the presence of his opponent it must be conceded that he has had an opportunity to show cause against his conviction but nobody will contend that that circumstance will prevent him from having another opportunity of showing cause against his conviction and sentence either by a substantive application initiated by himself under sub-s. (1) or by way of defending himself when the State or other interested person applies to the High Court in revision under S. 439 (1) for enhancement of sentence and a notice is issued on him under S. 439 (2) (See - Kala vs. Emperor, AIR 1929 Lah 584 (B)). Enhancement of sentence is undoubtedly an encroachment upon the liberty of the Subject and a very serious matter for an accused person and the Legislature may quite properly have thought that whenever an accused person is sought to be laid open to the risk of having his sentence enhanced, the question of the legality and propriety of his conviction should be re-examined by the High Court in the context of this new jeopardy, irrespective of anything that might have happened prior to the application for enhancement of sentence and the issuing of the notice on the accused to show cause. Indeed, there is, in sub-s. (6) itself, an indication in that behalf. This sub-section is to operate "notwithstanding anything contained in this section." In some of the decisions (e.g., - Emperor vs. Jorabhai, AIR 1926 Bom 555 (C; - Emperor vs. Dhanna Lal, AIR 1929 Lah 797 (D); - Emperor vs. Inderchand, AIR 1934 Bom 471 (E) and - King vs. Nga Ba Saing AIR 1939 Rang 392 (F)) it has been said at the 'non obstante' clause refers only to sub-s. (5). I find it difficult to accept this limited construction as correct. Sub-section (5) only says that where an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed. The idea is that if a person has a right of appeal he must first pursue that remedy. In other words, Sub-s. (5) is a disabling provision. By providing that no proceedings by way of revision shall be entertained at the instance of a person who, having a right of appeal, does not avail himself of it, the sub-section precludes such a person from initiating proceedings by way of revision. When the accused person under sub-s. (6) shows cause against his conviction he himself initiates no proceedings but only exercises the right to show ciuse against his conviction which is given to him because someboly else has taken proceedings against him for enhancement and a notice has been issued on him under sub-s. (2). In such a situation the accused person is on the defensive and the act of showing cause against proceedings initiated against him cannot properly be said to be proceedings "at his instance" which the High Court, by sub-s. (5), is enjoined not to entertain. Strictly speaking sub-s. (6) needs no exemption2from sub-s. (5). In any event and assuming that the act of showing cause against his conviction0under sub-s. (6) is tantamount to an application in revision initiated by him and such application is saved from the operation of sub-s. (5) by the 'non obstinate' clause of sub-s. (6) I do not see any reason for holding that the 'non obstante' clause of sub-s. (6) is concerned only with sub-s. (5). Although in showing cause against his conviction under Sub-s. (b) the accused person can urge all that he could do in an appeal, if not more, this act of showing cause is, nevertheless, in form at least, a continuation and indeed an integral part of the proceedings in revision initiated by the Court suc motu' or by the State or any other interested party. The general rule is that the exercise of revisional power is entirely a matter of discretion which is to be exercised by the High Court not capriciously but on sound judicial principles. Indeed, sub-s. (1) itself lays stress on this aspect of the matter by the use therein of the words "in its discretion.'" The 'non obstante' clause may well have been designed to emphasise that the new right conferred by sub-s. (6) is a matter of right and does not rest entirely on mere discretion of the Court. Further the 'non obstante' clause has a special significance even in a case where the accused person has already had an opportunity, by means of an appeal or revision filed by him in the High Court, to show cause against his conviction. Under sub-s. (1) there can be a revision only of the judgment or order of Criminal Courts inferior to the High Court and it does not sanction any revision of the judgment or order of the High Court itself, Therefore, where the accused person has unsuccessfully challenged the legality or propriety of his conviction in an appeal or revision application made by him before the High Court he cannot again initiate a substantive application be fore the High Court under .S. 439 (1) of the Code to re-examine his conviction or sentence for that will be to ask the Court to revise its own previous judgment or order, which the High Court cannot do under S. 439 (1) . But suppose that the dismissal of the appeal, or revision application made by the accused takes place in such circumstances that it still leaves it open to the State or other interested person to apply in revision for enhancement of the sentence and proceedings are initiated by the Court or the State for enhancement of sentence under S. 439 (1) and notice is issued on the accused under S. 439 (2), there is nothing in sub-s. (6) which, in terms, prevents the accused, in that situation, to again show cause against his conviction and sentence. The only argument that may, in those circumstances, be advanced with some semblance of plausibility is that to let the accused person to again challenge his conviction or sentence under sub-s. (6) is to cut across the provisions of sub-s. (1) and in effect to permit the accused to ask the High Court to revise its previous order, although no substantive application could be initiated by him under sub-s. (1). It may well be that the "non obstante" clause in sub-s. (6) was also designed to negative such an argument. Although ordinarily no substantive application can be initiated by an accused person, whose appeal or revision application has once been dismissed by the High Court, for revision or review of that order of dismissal, I can find no difficulty in construing and reading S. 439 (6) as giving to the accused person, who is faced with the risk of having his sentence enhanced, a second opportunity to do what he had previously failed to do. In other words, I see no incongruity in the Legislature giving a new right of revision to the accused person as a weapon of defence in the context of a new offensive taken by the State against him. Even if the act of showing cause under sub-s. (6) is to be regarded as a revision, there was nothing to prevent the Legislature, in the interest of the liberty of the subject, to provide for a limited right of revision of the judgment or decision or order of the High Court itself. In my judgment that is what the Legislature has done by adding subsection (6) to S. 439 and the 'non obstante' clause is intended to meet and repel the objection that may possibly have been taken on the score that, under sub-s. (1), there can be no revision by the High Court of its own order. In my opinion, so long as proceedings may be taken against the accused person for enhancement of his sentence and so long as notice may be issued on him to show cause against enhancement, so long must he have, in showing cause against enhancement of sentence, the right, under sub-s. (6), to show cause against his conviction, irrespective of anything that may have happened previously. That is how I read the sub-section. Indeed, in Emperor vs. Mangal Naran, AIR 1925. Bom 268 (G), McLeod, C. J., went further and expressed the view that if, after an appeal had been heard on its merits and dismissed, a notice to enhance sentence was issued, the accused would still have the right to show cause against his conviction although any attempt to set aside his conviction would not have much chance of success. For reasons to be stated hereafter I would rather say that in such a situation on application for enhancement would lie at all and that consequently no question would arise of the accused person exercising his right under subsection (6) This aspect of the matter that I am trying to indicate and emphasise does not appear to have been sufficiently adverted to in the subsequent decisions of the different High Courts in India except in one decision of a Full Bench of the Lahore High Court. It will be convenient at this stage to refer to those decisions.