EMPEROR Vs. KOYA PARTAB

JUDGEMENT

(1.) In this case the accused was convicted on April 29, 1930, under Section 32-5 of the Penal Code for causing grievous hurt to his wife, who died of the injuries. He was sentenced to one year's rigorous imprisonment. He appealed, and the appeal was summarily dismissed on June 9, 1930,--the appeal being an appeal from jail, under Section 421 of the Criminal Procedure Code. In dismissing the appeal the Court of appeal directed that notice should be given to the accused to show cause why the sentence on him should not be enhanced.

(2.) Now, the first point taken in this appeal is that the accused is entitled to be heard on the merits as to whether he should have been convicted or not, and Mr. Mehta, his pleader, relies on the words of Sub-section (6) of Section 489. That section provides that the Court may, in revision, amongst other things, enhance the sentence, and Sub-section (0) provides :- No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence; and then Sub-section (6) provides:- Notwithstanding anything contained in this section, any convicted person to whom an opportunity has been given under Sub-section (S) of showing cause why his sentence should not be enhanced shall, in showing cause, be entitled also to show cause against his conviction.

(3.) In my opinion, the accused in this case is not at liberty to be heard on the merits having regard to Section 430 of the Code, which provides that judgments and orders passed by an appellate Court upon appeal shall be final, except in the cases therein mentioned, Under that section, I think, the judgment of the Court of appeal dismissing the appeal on June 9, 1930, is a final order, which this Court is not at liberty to differ from. In Sub-section (6) of Section 439 the opening words are, " Notwithstanding anything contained in this section," and not, "notwithstanding anything contained in this Code ", and I think that these words do not entitle the accused to go behind Section 430, and to show cause against his conviction, after his appeal has been dismissed. Therefore, I think, that in a case such as this, where an appeal has been presented and dismissed, either after hearing or summarily, it is not open to the accused in showing cause why his sentence should not be enhanced, to go again into the merits. The point has already boon dealt with by this Court in the case of Emperor V/s. Jorabhai (1926) 28 Bom. L.R. 1051, and the only distinction between that case and the present one is that that case had been heard on the merits and not summarily dismissed. But, in my view, that distinction is not one of principle.