JAIRAM VITHOBA Vs. STATE OF BOMBAY

JUDGEMENT

(1.) THIS is an application for leave, to appeal to the Supreme Court on the ground that the case involves a substantial question of law.

(2.) THE petitioner was charged, before the learned Presidency Magistrate, 9th Court, Eandra, with having committed offences under Sections 4 (a) and 5 of Bombay Act 4 of 1887. The learned trial Magistrate convicted the petitioner of both the said offences. For the offence Under Section 4 (a) he sentenced the; petitioner to three months' rigorous imprisonment and he added that as the petitioner had been convicted and sentenced under Section 4 (a), he did not propose to pass a separate sentence or him Under Section 5 of the said Act. Against this order of conviction and sentence the petitioner preferred a revision application to this Court. Shah J. who heard this revision application set aside the conviction recorded against the petitioner under Section 4 (a) but maintained his conviction under Section 5, and he imposed a sentence of three months in respect of the offence under Section 5. It is this order which Mr. Dalai seeks to challenge by preferring an appeal to the Supreme Court.

(3.) MR. Dalai says that in sentencing the petitioner for the offence under Section 5 Shah J. acted without Jurisdiction because the imposition of the said sentence in law amounts to an enhancement of sentence and the procedure prescribed by Section 439, Criminal P. C. has not been followed in the present case. Mr. Dalai has relied upon a decision of this Court in -- 'ibrahim Haji v. Emperor' AIR 1940 Bom 129 (A ). The facts with which Beaumont C. J. and Sen J. were dealing in this case were substantially similar to the facts before us. The accused had been convicted both Under Sections 4 (a) and 5. A sentence of fine of Rs. 600 had been imposed against the accused under Section 4 (a) and no separate sentence had been passed under Section 5. In appeal the conviction under Section 4 (a) was set aside but that under Section 5 was confirmed, when the question arose as to the sentence to be imposed on the accused under Section 5, Beaumont O. J. who delivered the judgment of the bench observed that they could not impose a sentence under Section 5 themselves for "that would be enhancing the sentence". The learned Chief Justice remarked that the Magistrate was no doubt wrong in not imposing a. separate sentence for the offence under Section 5. But he was disposed to take the view that since the learned Magistrate had not imposed a sentence under Section 5 and if the Court of appeal were to impose a sentence, that would in substance amount to the enhancement of sentence. He no doubt added that it was open to the Court of appeal to issue a notice for enhancement and then proceed to impose an adequate sentence for the offence under Section 5. But on the facts of that particular case, the Court of appeal did not feel like adopting that course. Mr. Dalai naturally lays strong emphasis on this judgment and contends that Shah J. should not have imposed a separate sentence for the offence under Section 5 when no such sentence had been imposed upon the petitioner by the learned Magistrate himself.