iminal Appeal No 79 of 1969
Appeal by special leave from the judgment and order dated November 21 1968 of the Bombay High Court in Criminal Appeal No 818 of 1967
RV Pillai and Subodh Markandey for the appellants
HR Khanna BD Sharma for SP Nayar for the respondent dent
229 The Judgment of the Court was delivered by Mitter J
The six appellants in this appeal were charge sheeted for having committed offences punishable under sections 147 447 and 325 read with section 149 of the Indian Penal Code in the court of the Judicial Magistrate First Class Deglur District Nanded
Considering the evidence on record the Magistrate held that the accused were members of an unlawful assembly on September 27 1965 at the village school Chotwadi with the common object of causing injuries to the complainant
He also found that the accused had committed house trespass into the compound of the school and actually caused grievous hurt to the complainant a school teacher in pursuance of the common object of their unlawful assembly
He convicted the accused for offences under sections 147 447 and 325 read with section 149 IPC and sentenced each of them to suffer rigorous imprisonment for 15 days and to pay a fine of Rs 50 and in default of payment of fine to suffer further rigorous imprisonment for 15 days on the first count under section 447 read with section 149 IPC and sentenced each of them to suffer rigorous imprisonment for six months and to a fine of Rs  200or in default of payment of fine to suffer further rigorous imprisonment for one month on the second count under section 325 read with section 149 IPC He did not pass any fresh sentence on the third count under section 147 IPC He directed that the substantive sentences of imprisonment passed against accused on both counts should run concurrently
He also directed that in case the amount of fine was recovered Rs 200 should be paid to the complainant Murlidhar as compensation for the injury sustained by him under section 5451b of the Code of Criminal Procedure
The accused went up in appeal which was heard by the Additional Sessions Judge at Nanded
The Sessions Judge allowed the appeal and set aside the orders of conviction and directed the accused to be set at liberty
The order for payment of fine also was set aside
The State went up in appeal against the order of acquittal to the High Court
The appeal was allowed by the High Court and the order of acquittal was set aside
The High Court convicted all the six accused under sections 147 and 447 and 325 read with section 149 IPC and taking the view that the assault on the village teacher was wanton and unprovoked proceeded to deal with the culprits more firmly that the trying Magistrate
It passed sentence on the second accused holding him responsible for the blow which caused the fracture of the left ulna of the complainant to one year s rigorous imprisonment and a fine of Rs 300 and two months  further rigorous imprisonment in default under section 325 read with section 149 of the Penal Code
It also held that the remaining accused had played a comparatively minor part and injuries inflicted by them were simple
The sentence passed on each of them was six months  rigorous imprisonment and L2Sup
CI70 3 230 a fine of Rs 100 and one month s further imprisonment in default under section 325 read with section 149 IPC A further sentence of three months  imprisonment was passed on all the accused for the offence under section 447 read with section 149
No separate sentence was passed under section 147
This court granted special leave to appeal to the accused limited to the question of legality of sentence passed by the High Court
 Counsel on behalf of the appellants put forward his argument in a two fold manner
His first contention was that it was not open to the High Court exercising appellate jurisdiction under section 423 1a of the Code of Criminal Procedure to enhance the sentence passed by the trial Magistrate
The second branch of his argument was that even if the High Court was competent to do
so the appellants should have been asked to show cause why the sentence imposed on them by the Magistrate should not be enhanced and in the absence of such an opportunity no enhancement of sentence was competent
As the trial was by a Magistrate of the First Class the maximum sentence which could have been imposed on the accused was under section 32 of the Code limited to a term of imprisonment not exceeding two years and a fine not exceeding Rs 2000 
Under the Indian Penal Code the limit of punishment for an offence under section 447 is imprisonment for a term which may extend to three months or with fine which may extend to Rs 500 or with both but an offence under section 325 Can be punished with imprisonment of either description for a term which may extend to seven years besides
a fine
Under section 4171 of the Criminal Procedure Code an appeal against acquittal lies only to a High Court
Under section 4 18 an appeal lies on a matter of fact as well as on a matter of law except in cases where the trial is by a jury
Ss 419 and 420 deal with the procedure for lodging an appeal and section 421 gives the appellate court the power to dismiss the appeal summarily on receiving the petition of appeal if it considers that there is no sufficient ground for interfering with the impugned order
Under section 422 it is obligatory on the appellate court if it does not dismiss the appeal summarily to cause notice to be given to the appellant or to his pleader of the time and place at which the appeal will be heard and a like notice to be given to the accused
The powers of the appellate court in disposing of the appeal are contained in section 423 of the Code
The court after giving the notice of appeal under section 422 has to send for the record of the case and after perusing such record and hearing the appellant or his pleader if he appears and the Public Prosecutor if he appears and in case of appeal under section 417 the accused if he appears it may dismiss the appeal in case it is satisfied that there is no sufficient ground 231 for interfering
Where the appeal is from an order of acquittal it may under section 4231a reverse such order and direct that further enquiry be made or that the accused be retried or committed for trial as the case may be and find him guilty and pass a sentence on him according to law
No limits are here set to the sentence which may be passed by the appellate court except that it must be according to law
This power may be contrasted with the power under cl
b of section 4231  dealing with appeals from a conviction
For such appeals the Legislature specified the powers of the appellate court with a good deal of precision
Under sub clause b a court can 1 reverse the finding and sentence and acquit or discharge the accused or order him to be tried by a court of competent jurisdiction subordinate to such appellate court or committed for trial or 2 alter the finding maintaining the sentences or with or without altering the finding reduce the sentence or 3  with or without such reduction and with or without altering the finding alter the nature of the sentence but subject to the provisions of section 106 sub section
3 not so as to enhance the sentence
 It would appear from the above that wide though the powers of the appellate court be in dealing with an appeal from a conviction it has no jurisdiction to enhance the sentence even if it alters the finding or without altering the finding takes the view that greater punishment than what was meted is called for
Sub cl
1  b however is not the last word for cl
iA introduced in the section in the year 1955 expressly provides that a High Court exercising jurisdiction under cl 1 b may enhance the sentence notwithstanding anything inconsistent therewith contained in the said clause provided the accused has had an opportunity of showing cause against such enhancement
section 423 cl
1 b is based on the principle that where it is the convicted person who complains against the punishment given to him he should not be put in peril of a greater punishment if the State takes no exception to the order impugned by the convicted person
The insertion of cl
1A makes it clear that although the powers of courts subordinate to the High Court are limited under cl
1b the High Court may in a proper case enhance the sentence after giving an opportunity to the accused to show cause against the proposal
232 Apart from the powers under Chapter XXXI of the Code containing sections 404 to 431 which principally deals with appeals the High Court has powers infer alia of revision under Chapter XXXII of the Code
Under section 435 not only the High Court but even courts subordinate to it may call for and examine the record of any proceeding before any inferior criminal court for the purpose of satisfying itself as to the correctness legality or propriety of any finding sentence or order recorded or passed and as to the regularity of any proceeding of such inferior court
section 439 deals exclusively with the High Court s powers of revision
Under this section the High Court is empowered in the case of any proceeding the record of which has been called for by itself or which has been reported for orders or which otherwise comes to its knowledge to exercise the powers conferred on a court of appeal by sections 423426 427 and 428 or on a court by section 338 power to direct tender of pardon and may enhance the sentence but sub section
2 of the section lays down that such an order is not to be made to the prejudice of the accused unless he has an opportunity of being heard either personally or by a pleader in his own defence
Further when an accused is called upon to show cause why his sentence should not be enhanced he has a right to challenge his conviction under sub section
 6 
Referring to
the above provisions of the Code counsel for the appellants argued that in all cases where it was considered necessary the Legislature was careful to provide that the accused should never be subjected to a greater punishment by a superior court unless he was asked to show cause against the proposed enhancement
As there was no such provision in section 423  1  a the Legislature must be taken to have contemplated that in any case of an appeal against acquittal the accused should not be subjected to a punishment greater than what had been meted out to him by the punishing court
It was also argued that the words in section 423  1  a empowered the appellate court the High Court in this case to pass sentence on the accused according to law which is in contrast to the words used in section 31 1  of the Code under which a High Court may pass any sentence authorised by law
It was argued that section 423 1   a thus cuts down the power which the High Court might otherwise have had under section 31  1 
In our view the difference in the wording of section 311 and section 4231 a is a matter of no moment
The expression authorised by law means sanctioned by law while according to law means in conformity with law
The question remains as to what would be a sentence according to law when a High Court sets aside an order of acquittal when the same is preceded by a sentence of an inferior court
Is the High Court empowered to award any sentence which the law allows under the relevant section of the 233 Indian Penal Code or is its jurisdiction limited to such a sentence as was within the competence of the court punishing the offenders or again is it to restore the sentence originally passed  Let us look at the question apart from the authorities
An appeal is a creature of a statute and the powers and jurisdiction the appellate court must be circumscribed by the words of the statute
At the same time a court of appeal is a court of error and its normal function is to correct the decision appealed from and its jurisdiction should be co extensive with that of the trial court
It cannot and ought not to do something which the trial court was not competent to do
There does not seem to be any fetter to its power to do what the trial court could do
In this case the trial Magistrate was competent to pass a sentence of imprisonment up to two years and the High Court s jurisdiction hearing an appeal would therefore be limited to a sentence up to that period and no more
A special provision for asking the accused to show cause when the appeal is from an order of conviction or when the High Court exercises its revisional jurisdiction is not in derogation of the above rule
As already indicated when the accused prefers an appeal and the State is satisfied with the punishment meted out it is only logical to hold that the appellant should not stand in peril of something to his further detriment unless he is put on notice that the power of enhancement may be exercised
The same applies to the High Court s power of revision under section 439
The Legislature felt that when the High Court is exercising powers in this regard it should be given all the powers of a court of appeal including the power to enhance the sentence
Sub section
2 of section 439 is only meant to give an opportunity to the accused so that he be not condemned unheard and sub section
6 is
only an amplification of that principle and gives him a right to challenge his conviction if he is put in peril of enhancement of sentence
Where however the appeal is from an order of acquittal the matter is at large
There is no sentence which is binding on a person who was once an accused
He comes before the court with the presumption of innocence
If the court finds that the acquittal was not justified and that he was guilty of the offence with which he was charged it is for the appeal court to order punishment to fit the crime
If the appeal is from an order of acquittal with no prior order of sentence the punishment must be commensurate with the gravity of the offence
But if the order of acquittal is preceded by an order of conviction the court hearing the appeal from acquittal should not impose a sentence greater than what the court of first instance could have imposed inasmuch as if the trial court had given him the maximum sentence which it was competent to give and no appeal was preferred by the accused the State could 234 not have approached the High Court under any provision of the Code for enhancement of the sentence
The interposition of the order of an intermediate court of appeal and acquittal of the accused by it should not put the accused in a predicament worse than that before the trial court
We may now proceed to examine the earlier authorities
In re Ramaswami Chetty  Anr
1 the action of the appellate Magistrate enhancing a fine of Rs 50 to Rs 65 was held to be illegal by the Madras High Court
In Muthiah vs Emperor2 it was said that an appellate court has not an unlimited power but was only empowered to do which the lower court could and should have done
In Sita Ram vs Emperor3 which went up to the Nagpur Judicial Commissioner s court by way of revision the appellants had been convicted under section 324 IPC and sentenced to rigorous imprisonment for a term of four months each by a Magistrate of the Second Class
On appeal the District Magistrate maintained the convictions but altered the sentences on each of the accused to one of fine only and in default rigorous imprisonment was ordered for four months
Before the Judicial Commissioner it was contended that the sentence of fine imposed on the applicants was illegal so far as it exceeded the maximum fine which could have been inflicted by the Magistrate by whom they were tried
The Court held that when the District Magistrate decided that the case was one punishable with fine only he should have inflicted a fine which was within the jurisdiction of the trying Magistrate
The learned Judge relied on the decisions in Mahmudi Sheik vs Aji Sheik4 Muthiah vs Emperor5 Parameswara Pillay vs Emperor6 and observed that alike in civil and in criminal cases the power of the appellate court was measured by the power of the court from whose judgment or order the appeal before it had been made
The decisions in Maung E Maung vs The King7 Emperor vs Md Yakub Ali8 Lakshminarayana vs Apparao9 and Emperor vs Abbas Ali10 are on the same lines
A different note was however struck in Public Prosecutor vs Annamalai1
This was a case of an appeal preferred by the State against the acquittal of two accused by a Magistrate
The High Court finding the accused guilty took the view that passing sentence according to law meant passing any sentence that could be given for the offence
According to the learned single Judge the powers 1 1902 2 Weir487
2 29 Madras 190 3 11 Indian Cases 788 4 21 Calcutta 48 5 29 Madras 130 6 30 Madras 48 7 AIR 1940 Rangoon 118 8 45 Allahabad 594 9 AIR 1950 AP 530
10 AIR 1935 Nagpur 139 11 AIR 1965 Madras 608 235 of an appellate court in hearing an appeal against acquittal were not in any way restricted or limited to the powers of the trial court
He said Though there is no such limitation or restriction still there is one circumstance which altogether cannot be ignored and which must indeed be considered before imposing the sentence and that is what is it that the accused would have got if he was convicted by the Magistrate
He would not have got more than six months the maximum the Second Class Magistrate who tried him can give
The fact that he has been acquitted should not place him in a more disadvantageous position than if he were convicted
The sentence should not therefore be more severe than what he should have got in a case of conviction
 Accordingly the accused were sentenced to six months  rigorous imprisonment
In an earlier decision of the same High Court In re Tirumal Raju 1 another learned single Judge though disposed to accept the contention that the appellate Magistrate had no jurisdiction to enhance the fine beyond the powers of the trial Magistrate maintained the order sought to be revised by exercising powers under section 4393 of the Code
Running through the web of the
above decisions the principle almost universally accepted is that in exercise of its appellate powers the High Court should not award a sentence which is beyond the jurisdiction the trial court and in our opinion this is the principle which should be adopted
Our attention was however drawn to certain observations in Jagat Bahadur Singh vs State of Madhya Pradesh2 where a good many of the above authorities were taken note of by this Court
Referring inter alia to the cases of Emperor vs Abasali Yusufalli3 Emperor vs Muhammad Yakub Ali4 Maung E Maung vs The King5 and In re Tirumal Raju6 it was said that these cases laid down the correct law
The Court also added   both on principle and authority it is clear that the power of the appellate court to pass a sentence must be measured by the power of the court from whose judgment an appeal has been brought before it The question is can this observation be pressed into service by the appellants on the ground that as the Sessions Judge hearing 1 AIR 1947 Madras 368
2  3 39 Calcutta57 4 45 Allahabad 594
5 AIR 1940 Rangoon 118 6 AIR 1947 Madras 368 236 the appeal from the order of the Magistrate could not have enhanced the sentence it was not open to the High Court to do so when hearing an appeal from the order of acquittal by the Sessions Judge
In other words could the High Court have done what the Sessions Judge was not empowered to do  In our opinion the answer must be in the affirmative
When the order of the Magistrate was set aside by the Sessions Judge the matter became one at large and the High Court hearing an appeal therefrom was empowered under section 4231a to pass a sentence according to law
It could therefore pass any sentence which the Magistrate trying the case was empowered to pass
and the High Court in this case did not exceed that limit
A strange result would follow if we were to accept the contention
If the accused had been acquitted by the Magistrate and the State had filed an appeal against the order of acquittal the High Court would no doubt have had power to impose any sentence which the Magistrate would have been entitled to impose
But if the accused is acquitted on appeal by the Sessions Judge the power of the High Court would be limited
Surely the Code does not contemplate this difference in the appeals under section 417 Cr
PC Further the Sessions Judge would have been entitled to recommend enhancement of sentence to the High Court if he had maintained the conviction
And the High Court could sua motu have issued notice for enhancement
If we were to accept the contention finality is attached to
the sentence given by the Magistrate
We do
not think this is the scheme of the Code
On the other hand the scheme of the Code seems to be to confer final authority on the High Court
The first contention therefore fails and we hold that in disposing of an appeal from an order of acquittal the High Court is competent to
pass a sentence which the trial court was empowered to pass
The second branch of the argument is
without any merit
Where the accused is given notice of appeal and actually takes part in the hearing before the High Court it would be superfluous to give him notice to show cause why a sentence within the competence of the trial Magistrate should not be passed
The accused knows or ought to know that the High Court was
bound to form its own conclusions on the material before it and award a sentence which the merits of the case demanded within the limit of the trial court s jurisdiction
The absence of a show cause notice does not violate any known principle of natural justice
On the facts of the case we are of the view that the sentence imposed by the High Court should be reduced to that originally imposed by the trial Magistrate
The  appeal is allowed in part to this extent
GC Appeal partly allowed


Summary:
The appellants were charged with offences punishable under section 147 447 and 325 read with section 149 of the Indian Penal Code in connection with an incident in which they were alleged to have committed house trespass into the compound of a school and injured a teacher
The Magistrate convicted them and sentenced them on various counts to imprisonment and fine
The sentences and fines were lower than the maximum that the Magistrate was empowered to impose under the Code of Criminal Procedure
In appeal the Sessions Judge acquitted the appellants
The State appealed to the High Court under section 417 Cr
The High Court reversed the orders of the Sessions Judge and considering the nature of the acts committed by the appellants imposed higher sentences and fines on them but they were still not higher than what the Magistrate could himself have imposed
In appeal to this Court against the High Court s judgment it was contended that the High COurt acting under section 4231 a is not empowered to impose higher sentences than the lower court had passed and in any case not without a notice to show cause against enhancement
It was also urged that the High Court could under section 4231 a pass a sentence according to law and thus it did not enjoy the powers which it otherwise might have exercised under section 311 of the Code under which a High Court may pass any sentence authorised by law
HELD i The difference in the wording of section 31  1  and s23  1  a is a matter of no moment
The expression authorised by law means sanctioned by law while according to law  means in conformity with law
The question to be answered in either case remains the same ie what is the
sentence the High Court is empowered to impose after it sets aside an order of acquittal when the same is preceded by a sentence of an inferior court
232 H ii An appeal is a creature of statute and the power and jurisdiction of the appellate court must be circumscribed by the words of the statute
At the same time a court of appeal is a court of error  and its normal function is to correct the decision appealed from if necessary and its jurisdiction should be co extensive with that of the trial court
It cannot and ought not to do something which the trial court was not competent to do
There does
not seem to
be any fetter on its power to do
what the trial court could do
In this case the trial Magistrate was competent to pass a sentence of imprisonment up to two
years and the High Court s jurisdiction hearing an appeal would therefore be limited to a sentence up to that period and no more
233 B 228 iii Although the Sessions Judge in hearing the appeal against the appellants  conviction could not enhance the sentence the High Court in hearing appeal against the order of acquittal by the Sessions Judge could do so
When the order of the Magistrate was set aside by the Sessions Judge the matter became one at large and the High Court hearing an appeal therefrom was empowered under section 4231 a to pass a sentence according to law
It could therefore pass any sentence which the Magistrate trying the case was empowered to pass and the High Court in the present case did not exceed that limit
238 A C The acceptance of the appellant s contention would lead to the strange result that in an appeal against acquittal by the Magistrate the High Court could pass any sentence which the Magistrate was empowered to do but in an appeal against a judgment of a Sessions Judge setting
aside a conviction by the Magistrate the High Court s power would be limited to restoring the sentence which the Magistrate had actually passed
Further the Sessions Judge would have been entitled to recommend enhancement of sentence to the High Court if he had maintained the conviction
And the High Court could suo motu have issued notice for enhancement
But on the appellant s contention finality would be attached to the sentence given by the Magistrate
Such could not be attached to the sentence given by the Magistrate
Such could not be the scheme of the Code
238 C E iv When the accused is given notice of appeal under section 417 and actually takes part in the hearing before the High Court it would be superfluous to give him notice to show cause why a sentence within the competence of the trial Magistrate should not be passed
The accused knows or ought to know that the High Court was bound to form its own conclusions on the material before it and award a sentence which the merits of the case demanded within the limit of the trial court s jurisdiction
The absence of a show cause notice does not violate any known principle of natural justice
238 F G On the above findings the appeal must be dismissed
In re Ramaswami Chetty  Anr
1902 2 Weir 487 Muthiah vs Emperor 29 Madras 190 Sita Ram vs Emperor 11 Indian Cases 788
Mahmudi Sheik vs Aji Sheik 21 Calcutta 48 Parameswara Pillay vs Emperor  Maung E Maung vs The King AIR 1940 Rang
118 Emperor vs Md Yakub Ali
45 Allahabad 594 Lakshminarayana vs Apparao AIR 1950 AP 530 Emperor
Abbas Ali AIR 1935 Nag
139 Public Prosecutor vs Annamalai AIR 1955 Mad 608 In the Tirumal Raju AIR 1947 Mad 368 Jagat Bahadur Singh vs State of Madhya Pradesh 19662 SCR 822 and Emperor vs Abasali Yusufalli 39 Calcutta 157 referred to