EMPEROR Vs. INDERCHAND BACHRAJ MARWADI

JUDGEMENT

(1.) The accused Inderchand Bachraj Marwadi was convicted by the First Class Magistrate, Western Division, East Khandesh, of offences under Secs.209 and 196 of the Indian Penal Code and was sentenced to suffer eight months rigorous imprisonment and a fine of Rs. 500, in default two months further imprisonment under each offence. The sentences of imprisonment were ordered to be consecutive. In appeal the Sessions Judge of East Khandesh reduced the sentences to three months rigorous imprisonment and a fine of Rs. 500, in default two months further imprisonment under each offence, the sentences of imprisonment to be concurrent. Against this decision the accused filed an application in revision to this Court. This application was heard by a single Judge,. Mr. Justice Kania, during the vacation, and was summarily dismissed on April 30, 1934. After this decision the Government have filed the present application in revision asking that the sentences passed upon the accused should be enhanced.

(2.) Mr. Jayakar for the accused contends that under Section 439, Sub-section (6), of the Criminal Procedure Code, the accused is entitled, at the hearing of the application for enhancement of sentence, to show cause against his-conviction also. Under Rule 2, Sub-clause (XXII), of the High Court Rules, Appellate Side, a single Judge during the vacation can dispose of emergent criminal revision applications, and the judgment of Mr. Justice Kania dismissing the revision application filed by the accused was, therefore, a valid order of dismissal. If the accused is now allowed to show cause against the conviction this bench will in effect be rehearing a matter already finally decided by this Court.

(3.) In Emperor V/s. Mangal Naran (1924) 27 Bom. L.R. 355 Macleod C.J., in discussing whether appeals filed by an accused and notices for enhancement of sentence should be heard together, observed that in his view the former practice of this Court of first disposing of the appeal and then considering whether notices to enhance should issue was correct. He added (p. 358): If, after an appeal has been heard on its merits and dismissed, a notice to enhance the sentence is issued, the accused has still the right to show cause against his conviction, but any attempt to set aside the conviction would not have much chance of success.