iminal Appeal No 75 of 1954
Appeal by Special Leave from the Judgment and dated the 24th July 1953 of the Bombay High Order a Court in Criminal Revision Application No 669 of 1953 arising out of the Judgment and Order dated the 29th June 1953 of the Court of Presidency Magistrate 9th Court at Bandra Bombay in Case No 1187273P of 1952
 P K Chatterjee for the appellants
N section Bindra P G Gokhale with him for the respondent
December 13
The Judgment of the Court was delivered by VENKATARAMA AYYAR J
The first appellant was at the relevant date in possession of room No 10 in House No 334 Bazar Road Bandra Bombay
 On information that this room was being used as a gaming house Mr Bhatt Sub Inspector of Police raided it on 19 9 1952 and found the two appellants and four others in possession of gaming instruments All of them were prosecuted under section 5 of the Bombay Prevention of Gambling Act Bombay Act IV of 1887 hereinafter referred to as the Act for being present in a gaming house for the purposes of 1051 gaming and the first appellant was in addition charged under section 4a of the Act for keeping a gaming house
The Presidency Magistrate who tried the case found the first appellant guilty under section 4a of the Act and sentenced him to three months  rigorous imprisonment
He also found him guilty under section 5 of the Act but awarded no separate sentence under that section
The second appellant was found guilty under section 5 and sentenced to three months  rigorous imprisonment
The appellants took the matter in revision to the High Court which set aside the conviction of the first appellant under section 4a but confirmed that under section 5 and awarded a sentence of three months  rigorous imprisonment under that section
As regards the second appellant both the conviction and sen tence were confirmed
Against this order the present appeal by special leave has been preferred
Both the courts below have concurrently found that the appellants were present in a gaming house for the purpose of gaming and have thereby committed an offence punishable under section 5 of the Act and that finding is not under challenge before us
The only contention that has been raised before us and it arises only as regards the first appellant is that as the High Court had set aside his conviction under section 4 a of the Act it should have set aside the sentence passed on him under that section and that it had no power under the Code of Criminal Procedure to impose a sentence under section 5 when none such had been passed by the Magistrate
This contention is based on the terms of section 423
Under that section when there is an appeal against a conviction the court has the power under subclause 1b either 1 to reverse the finding and sentence and acquit or discharge the accused or order his retrial or 2 to alter the finding but maintain the sentence or 3 to reduce the sentence with or without altering the finding or 4 to alter the sentence with or without either reducing the sentence or altering the finding but subject to section 1063 not so as to enhance the same
It is urged that the 1052 present case does not fall within any of the four categories mentioned above as the conviction under section 5 has been affirmed and no question of reduction or alteration of sentence arises as none had been imposed under that section by the Magistrate and that accordingly the order of the High Court could not be justified under any of the provisions of the Code
It is further contended that the award of sentence under section 5 amounted in the above circumstances to an enhancement and was in consequence illegal as no notice had been issued therefor 
as required by law
In support of this contention the decision in Ibrahim vs Emperor1 is relied on
In that case as in the present the accused was convicted both under section 4a and section 5 of the Act but a sentence was passed under section 4a and none under section 5
On appeal the learned Judges set aside the conviction under section 4a and on the question of sentence observed that the Magistrate was wrong in not having imposed a separate sentence under section 5 and continued He ought to have imposed a sentence under each section but as he has not imposed a sentence under section 5 we cannot impose one ourselves for that would be enhancing the sentence
These observations undoubtedly support the first appellant
A different view however was taken in two other decisions which may now be noticed
In Superintendent and Remembrancer of Legal Affairs vs Hossein Ali2 the accused had been convicted by the Magistrate both under section 363 and section 498 of the Indian Penal Code and sentenced to imprisonment under section 363 no separate sentence having been awarded under section 498
On appeal the Sessions Judge set aside the conviction under section 363 but held the accused guilty under section 498
On a reference as to whether the Sessions Judge could pass any sentence under section 498 it was held by the High Court that he could under section 423 1 b of 1 AIR 1940 Bom
2 AIR 1938 Cal 439
1053 the Code of Criminal Procedure as there was an alteration of the conviction under sections 363 and 498 to one under section 498
This view proceeds in our opinion on a misconception of the true meaning of the words alter the finding in section 4231b of the Code of Criminal Procedure
When a statute enacts provisions creating specific offences in law these offences constitute distinct matters with distinct incidents
Under section 233 of the Code of Criminal Procedure they have to be separately charged and under section 367 the judgment has to specify the offence of which and the law under which the accused is convicted
When there is a conviction for more offences than one there are distinct findings in respect of each of them and when section 423 1 b speaks of a finding being reversed or altered by the court of appeal it has reference to the finding in respect of each of the offences
When therefore the High Court set aside the conviction under section 4 a and affirmed that under section 5 there are two distinct findings one of reversal and another of affirmance and there is no question of alteration
The decision in Superintendent and Remembrancer Of Legal Affairs vs Hossein Ali1 was followed in Pradip Chaudhry vs Emperor2
There the Sessions Judge convicted the accused under sections 324 and 148 of the Indian Penal Code and sentenced them to imprisonment under section 324 but no sentence was imposed on them under section 148
On appeal the High Court set aside the conviction under section 324 and confirmed that under section 148
Dealing with the contention of the accused that the Court had no power under section 423 1 b of the Code of Criminal Procedure to award a sentence under section 148 the learned Judges observed that they had ample power to transpose the sentence so long as the transposition does not amount to enhancement
We are unable to support the reasoning in this decision either
There is nothing about transposition of sentence under section 4231b
It only provides for altering the finding and maintaining the sentence 1 AIR 1938 cal
2 AIR 1946 Patna 235
1054 and that can apply only to cases where the finding of guilt under one section is altered to a finding of guilt under another
The section makes a clear distinction between a reversal of a finding and its alteration and provides that when there is a reversal the order to be passed is one of acquittal discharge or retrial whereas when there is an alteration the order to be passed is one of maintaining reducing or altering the sentence
But here the order passed by the High Court is not one of alteration of any finding
It is as already stated a reversal of the finding under section 4a and a confirmation of the conviction under section 5
We are therefore of opinion that on the language of the section the imposition of a sentence under section 5 by the High Court cannot be justified
The question still remains whether apart from section 4231 b the High Court has the power to impose the sentence which it has
When a person is tried for an offence and convicted it is the duty of the court to impose on him such sentence as is prescribed therefor
The law does not envisage a person being convicted for an offence without a sentence being imposed therefor
When the trial Magistrate convicted the first appellant under section 5 it was plainly his duty to have imposed a sentence
Having imposed a sentence under section 4a he obviously considered that there was no need to impose a like sentence under section 5 and to direct that both the sentences should run concurrently
But in strictness such an order was the proper one to be passed
The appellants then took the matter in revision to the High Court and contended that their conviction under section 5 was bad
The High Court went into the question on the merits and found them guilty under that section
It was the duty of the High Court to impose a sentence under section 5 and that is precisely what it has done
The power to pass a sentence under those circumstances is derived from the law which enacts that on conviction a sentence shall be imposed on the accused and that is a power which can and ought to be exercised by all the courts which having jurisdiction to decide whether the 1055 accused is guilty or not find that he is
We are of opinion that this power is preserved to the appellate court expressly by section 4231d which enacts that it can make any amendment or any consequential or incidental order that may be just or proper
When a conviction is affirmed in appeal but no sentence had been awarded by the trial Magistrate
 the award of a sentence is consequential on and incidental to the affirmance of the conviction and it is a just and proper order to be passed under the law
We are unable to agree with the view expressed in Ibrahim vs Emperor1 that such an order could be an enhancement of the sentence
Before a sentence can be said to be enhanced there must be one which could be enhanced and when no sentence was imposed on a conviction by the trial Magistrate and one is for the first time awarded in appeal it cannot correctly be said to be an enhancement
We are accordingly of opinion that it was within the competence of the High Court to have passed the sentence which it had
There is another ground on which the order of the lower court can be sustained
Against the conviction of the appellants by the Presidency Magistrate no appeal lay and accordingly the appellants preferred a revision to the High Court
Under section 4391 of the Code of Criminal Procedure the High Court in hearing a revision can exercise the powers of a court of appeal under section 423 and may enhance the sentence
Under section 4392 an order of enhancement could not be passed unless the accused bad an opportunity of being heard in his defence and under section 4396 the accused is also entitled when proceedings are taken under section 4392 to show cause against his conviction
The substance of the matter is that when proceedings are taken against the accused for enhancement of sentence under section 4392 he has a right to be beard both on the question of the propriety of the conviction and of the sentence to be imposed on him if he is convicted
In the present case the first appellant had an opportunity of pre 1 AIR 1940 Bom
1056 senting his case in respect of both these matters and in fact he availed himself of the same
He himself raised in his revision the question of his guilt under section 5 and the High Court on a consideration of all the evidence affirmed his conviction
On the question of sentence section 5 enacts that when a person is found guilty under that section the punishment shall not be less than three months  imprisonment and Rs 200 fine  if be had been convicted for the same offence previously
The first appellant had a previous conviction and the sentence of imprisonment is the minimum which could be passed against him under section 5
With reference to this aspect of the matter the High Court observes In view of the fact that the first accused admits one previous conviction under section 5 of the Act the sentence of three months  rigorous imprisonment passed upon him by the learned Presidency Magistrate is justified
Now the question is whether in the circumstances the order of the High Court could be held to be bad for want of notice under section 4392
The law does not prescribe that any particular formalities should be complied with before action is taken under that section
It only provides that the accused should have an opportunity of showing cause against the conviction and enhancement and as the first appellant was heard on both these questions the require ments of the section were satisfied
The order of the High Court could accordingly be maintained under section 439 even if it were to be regarded as an enhancement of the sentence
In any event no prejudice has resulted to the first appellant by reason of the absence of a formal notice under section 4392
In the result the appeal is dismissed


Summary:
The first appellant was prosecuted under section 5 of the Bombay Prevention of Gambling Act Bombay Act IV of 1887 for being present in a gaming house for the purposes of gaming and was in addition charged under section 4a of the Act for keeping a gaming house
The Presidency Magistrate who tried the case found him guilty under section 4a and sentenced him to three months  rigorous imprisonment
He also found him guilty under section 5 but awarded no separate sentence under that section
In revision the High Court set aside the conviction under section 4a but confirmed that under section 5 and awarded a sentence of three months  rigorous imprisonment under that section
It was contended for the first appellant that the High Court had no power under section 4231b of the Code of Criminal Procedure to impose any sentence under section 5 of the Act when no such sentence had been awarded by the Magistrate and that in any event the award of such a sentence amounted to an enhancement and was in consequence illegal as no notice had been issued there for as required by law
Held that though section 4231b of the Code of Criminal Procedure was not applicable to the case the High Court had power to pass the sentence under section 4231d
The law does not envisage a person being convicted for an 1050 offence without a sentence being imposed therefor and the award of a sentence by the High Court was only consequential on and incidental to the affirmance of the conviction and it was a just and proper order to be passed under the law within the meaning of section 4231d of the Code of Criminal Procedure
Such a sentence cannot amount to an enhancement as it was awarded only for the first time in appeal
Even if it were to be regarded as an enhancement the order of the High Court could not be held to be bad for want of notice under section 4392 as the first appellant had an opportunity of showing cause against the conviction and enhancement and in any event no prejudice had resulted to him by reason of the absence of a formal notice under the section
Ibrahim vs Emperor AIR  Superintendent and Remembrancer of Legal Affairs vs Hossein Ali AIR and Pradip Chaudhry vs Emperor AIR 1946 Pat 235 disapproved