JAYARAM VITHOBA Vs. STATE OF BOMBAY

JUDGEMENT

(1.) The first appellant was, at the relevant date, in possession of room No. 10 in House No. 334, Bazar Road, Bandra, Bombay. On information that this room was being used as a gaming house, Mr. Bhatt, Sub-Inspector of Police, raided it on 19-9-1952, and found the two appellants and four other in possession of gaming instruments. All of them were prosecuted under section 5 of the Bombay Prevention of Gambling Act (Bombay Act IV of 1887), hereinafter referred to as the Act, for being present in a gaming house for the purposes of gaming, and the first appellant was in addition, charged under S. 4(a) of the Act, for keeping a gaming house. The Presidency Magistrate who tried the case, found the first appellant guilty under section 4(a) of the Act, and sentenced him to three months' rigorous imprisonment. He also found him guilty under section 5 of the Act, but awarded no separate sentence under that section. The second appellant was found guilty under section 5, and sentenced to three months' rigorous imprisonment. The appellants took the matter in revision to the High Court, which set aside the conviction of the first appellant under section 4(a) but confirmed that under Section 5, and awarded a sentence of three months' rigorous imprisonment under that section. As regards the second appellant, both the conviction and sentence were confirmed. Against this order, the present appeal by special leave has been preferred.

(2.) Both the courts below have concurrently found that the appellants were present in a gaming house for the purpose of gaming, and have thereby committed an offence punishable under section 5 of the Act and that finding is not under challenge before us. The only contention that has been raised before us - and it arises only as regards the first appellant- is that as the High Court had set aside his conviction under section 4(a) of the Act, it should have set aside the sentence passed on him under that section, and that it had no power under the Code of Criminal Procedure, to impose a sentence under section 5, when none such had been passed by the Magistrate. This contention is based on the terms of section 423. Under that section, when there is an appeal against a conviction the court has the power under sub-clause (1) (b) either (1) to reverse the finding and sentence, and acquit or discharge the accused, or order his retrial or (2) to alter the finding but maintain the sentence, or (3) to reduce the sentence with or without altering the finding, or (4) to alter the sentence with or without either reducing the sentence or altering the finding, but , subject to section 106(3), not so as to enhance the same. It is urged that the present case does not fall within any of the four categories mentioned above as the conviction under section 5 has been affirmed, and no question of reduction or alteration of sentence arises, as none had been imposed under that section by the Magistrate, and that accordingly the order of the High Court could not be justified under any of the provisions of the Code. It is further contended that the award of sentence under section 5 amounted in the above circumstances to an enhancement, and was, in consequence, illegal, as no notice had been issued therefor, as required by law.

(3.) In support of this contention, the decision in - 'Ibrahim Haji vs. Emperor'. AIR 1940 Bom 129 (A) is relied on. In that case, as in the present, the accused was convicted both under section 4(a) and section 5 of the Act, but a sentence was passed under section 4(a) and none under section 5. On appeal, the learned Judges set aside the conviction under section 4(a) and on the question of sentence, observed that the Magistrate was wrong in not having imposed a separate sentence under section 5, and continued: