BABU Vs. STATE

JUDGEMENT

(1.) THIS is a special appeal under Section 25 of the High Court of Judicature Act. Accused Babu and Uttamsingh were convicted under Sections 292 and 385 of the Gwalior Penal Code and sentenced each to 14 years' rigorous imprisonment and a fine of Re. 1/- and 4 years' rigorous imprisonment and a fine of Rs. 100/- respectively. Against that decision the accused filed an appeal for acquittal and the Government filed a revision for enhancement of sentence. A division bench of the High Court dismissing the appeal of the accused, accepted the revision of the Government and enhanced the sentence to life imprisonment and a fine of Re. 1/- each under Section 292 of the Gwalior Penal Code. Against that decision the accused have filed this appeal.

(2.) THE first contention raised by the learned Counsel for the appellants is that the High Court erred in law in enhancing the sentence to life imprisonment which the Sessions Judge was not competent to pass. This argument is advanced on the analogy of Sub-section 3 of Section 439 of the Criminal Procedure Code. This Sub-section says that where the sentence dealt with under this section has been passed by a Magistrate acting otherwise than under Section 34 the Court shall not influx a greater punishment for the offence which in the opinion of such Court the accused has committed, than might have been inflicted for such offence by a Presidency Magistrate or a Magistrate of the first class. This argument has no force. The Sub-section clearly precludes the High Court to pass a greater sentence than the Magistrate of the First Class can pass only in a case when the sentence is passed by a Magistrate. But it makes no mention with regard to the sentence passed by a Sessions Judge. There is no reason therefore, to extend the scope of this Sub-section to include the sentence passed by Sessions Judges. Nor has any authority been cited in support of such a proposition. On the contrary the learned Dy. Government Advocate cited two decisions Raja Ram v. Emperor AIR (22) 1935 Oudh 23d and Emperor v. Ram Nath AIR (22) 1935 All 989, to show that the sentence passed by the assistant Sessions Judge can be enhanced by the High Court and that this Sub-section is not attracted in a case where the sentence is not passed by a Magistrate. This contention, therefore, cannot be accepted.

(3.) THE second contention raised by the appellants is that the first information report was not legally proved. This contention also has no force. It is no doubt true that a copy of the first information report was submitted in the Court. But it appears from the record that during the course of the trial original first information report was produced and the contents of the first information report were put to witness Krishna, P. W. 1, who admitted them. Hence this contention has no sub-stance.