JAGDISH B RAO Vs. STATE

JUDGEMENT

(1.) The applicant seeks to obtain leave to appeal to the Supreme Court against the decision of this Court dated 4th February, 1974.

(2.) The first ground raised by Dr. Ataide Lobo is that this Court did not issue a notice to the respondent to show cause why the sentence awarded to him by the Magistrate should not be enhanced prior to the passing of the impugned order. Dr. Lobo argues that this omission militates against the principles of natural justice and vitiates the entire proceedings. The contention of Dr. Lobo is factually incorrect. When a revision application was made by the respondent No. 2 to the Sessions Court for enhancing tine punishment awarded by the Magistrate to the applicant, the Sessions Court issued a notice of the application to the applicant. This notice must have been accompanied by the application itself and was sufficient to give the applicant notice that the enhancement of his punishment was being contemplated by a court of law. It is true that the Sessions Court had no power to enhance the punishment but it certainly had the power of examining; the case and particularly the question as to Whether the punishment should be enhanced and to submit to this Court a report recommending the enhancement of punishment. The hearings that are held by the Sessions Court under Section 435 Cri. P.C. are hearings held by that Court on behalf of this Court and in exercise of the revisional powers of this Court. The Sessions Court is not a Court of revision. But the law has given to it limited powers for the purpose of helping this Court in exercise of its revisional powers. The Sessions Court examined the question of enhancement of punishment in detail and came to the definite conclusion that the punishment should be enhanced. The only technical error which the Sessions Court appears to have committed by oversight is that instead of referring the matter to this Court for orders it passed the order itself.

(3.) When the matter came up to this Court, brought before me not only by the respondent No, 2 but also by the applicant, by means of two different proceedings, the applicant took part in the proceedings through his duly constituted attorney, Shri Joshi. It is abundantly clear, that the applicant, in view of what was stated in the application of the respondent No. 2 of which a copy was supplied to the applicant, was fully aware that this Court was holding hearings in those two matters for the purpose of arriving at the conclusion as to whether the punishment awarded by the Magistrate to the applicant should toe enhanced or not. The applicant argued the case at length on the point that the punishment should not be enhanced and one of his arguments was that the question of punishment is within the discretion of the Magistrate and that such discretion should not be lightly interfered with.