EMPEROR Vs. JORABHAI KISANBHAI

JUDGEMENT

(1.) In this case a Sub-Inspector of Police was convicted of framing an incorrect record as a public servant under Section 218, fabricating false evidence under Section 193 using such fabricated evidence under Section 196, and forgery under Section 465, I.P.C. He was sentenced to one year's rigorous imprisonment for each of those offences and to pay a fine of Rs. 500 also under Section 218, I.P.C., in default to serve a further term of six months rigorous imprisonment. The Sessions Judge of Surat ordered the sentences of imprisonment to run concurrently. An appeal was made to this Court, and a Division Bench, consisting of the Chief Justice and Shah, J., confirmed the convictions and sentences and dismissed the appeal on April 7, 1926. After the judgment had been delivered, the Government Pleader applied orally to the Court to have notice issued to the accused to show cause why his sentences should not be enhanced, and this application was granted. We have now that application before us.

(2.) It is contended by Mr. Coyajee for the accused that this Court has, in the circumstances, no legal power to enhance the sentences under Section 439, Criminal P.C. His main contention is that this would practically amount to this Court reviewing or revising the judgment already delivered by a Bench of this Court on April 7, and reliance is placed on the provisions of Section 430, Criminal P.C., which says that judgments and orders passed by an appellate Court upon appeal shall be final, except in the cases provided for in Section 417 and Chapter XXXIJ. He drew our attention also to the decision of this Court in Emperor V/s. Mangal Naran 27 Bom. L.R. 355. In that case it was held that ordinarily it is not desirable, when an appeal is admitted, to issue a notice at the same time on the accused "under Section 439, Criminal P.C., asking him to show cause why the sentence passed upon him should not be enhanced. It was held that the Court should first of all deal with the appeal on its merits, and it is only after disposing of the appeal that it should consider whether a notice to enhance the sentence should issue.

(3.) The learned Counsel for the accused contends that that decision is erroneous, and that the only legal procedure is to issue a notice for enhancement before the appeal has been actually disposed of Reference is also made to the provisions of Sub-section (6) of Section 439, Criminal P.C., which were added by Act XVIII of 1923. The sub-section now allows a convicted person, to whom a notice has been given, to show cause why his sentence should not be enhanced, a right of showing cause also against his conviction. This, no doubt, supports the contention that the appeal should not have been disposed of prior to the issue of a notice.