ON Criminal Appeal No 165 of 1957
Appeal by special leave from the judgment and order dated the 4th August 1955 of the Patna High Court in Criminal Appeal No 699 of 1953 with Criminal Revision No 205 of 1954 arising out of the judgment and order dated the 12th December 1953 769 of the Court of the Assistant Sessions Judge Second Court Chapra in Trial No 70 of 1953
G C Mathur for the appellants
section P Varma for the respondent
October 28
The following judgment of the Court was delivered by SINHA J
The only question for determination in this appeal is whether the High Court in its revisional jurisdiction has the power to enhance the sentence as it has done in the instant case beyond the limit of the maximum sentence that could have been imposed by the trial court on the accused persons
The appellants along with others were placed on their trial before the Assistant Sessions Judge of Chapra in the district of Saran for the offence of dacoity under section 395 Indian Penal Code
They along with two others were convicted under section 395 Indian Penal Code and sentenced to rigorous imprisonment for 5 years by the Assistant Sessions Judge by his Judgment and order dated December 12 1953
The other accused were acquitted
The convicted persons preferred an appeal to the High Court at Patna
The High Court in its revisional jurisdiction while admitting the appeal called upon the appellants to show cause why in the event of their convictions being maintained their sentence should not be enhanced
The appeal and the rule for enhancement of sentence were heard together by a Division Bench of that Court
The High Court by its judgment and order dated August 4 1955 allowed the appeal of two of the appellants and acquitted them but maintained the conviction as against the remaining six appellants
On the question of sentence the High Court observed that the  offence of dacoity has increased tremendously
It is a very heinous offence as innocent persons while sleeping in their houses are attacked and their belongings are taken by force
 The High Court therefore was of the opinion that a sentence of five years  rigorous imprisonment was extremely inadequate
It therefore enhanced the sentence to 10 years  rigorous imprisonment in each 770 and obtained special leave to appeal limited to the question of sentence only the question being whether the High Court had the jurisdiction to enhance the sentence beyond the limits of the power of the trial court itself The occurrence of dacoity which is the subjectmatter of the charge against the appellants along with others took place on the night between July 1 and 2 1952 in the house of Ranjit Bahadur a minor
After midnight 16 or 17 dacoits fully armed with various deadly weapons broke open the main entrance door of the house with an axe
After going into the house they broke open boxes and tampered with the iron safe and removed articles worth twenty thousand rupees
The inmates of the house were over powered
Some of them slipping out of the house raised a big fire which is the customary form of alarm raised against the invading crowd of dacoits
On that alarm a number of people of the village turned up but had not the courage to face the dacoits for fear of being shot
They contented themselves with using brickbats against the dacoits who made good their escape with their booty
It would thus appear that it was a serious occurrence involving the lives and fortunes of the inmates of the house and naturally the High Court took a very serious view of the offence
In this Court the learned counsel for the appellants who appeared amicus curiae contended in the first place that the High Court had exceeded its powers in enhancing the sentence from 5 to 10 years inasmuch as the trial court itself could not have inflicted a sentence of imprisonment for more that 7 years
Alternatively he contended that the High Court had not kept in view the dictum of this Court in the case of Bed Raj vs The State of Uttar Pradesh 1 while enhancing the sentence against the appellants before it
And lastly it was contended that in any view of the matter in the circumstances of this case the sentence of 10 years rigorous imprisonment is too severe
In our opinion there is no substance in any one of these contentions
1  771 The main point on which the special leave was granted is the question of the competence of the High Court to impose a higher sentence than that which could have been imposed by the learned Assistant Sessions Judge under section 313 of the Code of Criminal Procedure
The learned trial judge could not have imposed a term of imprisonment exceeding 7 years
The argument is that the High Court could enhance the sentence from 5 to 7 years and no more
This argument is sought to be enforced by the consideration that it must be presumed that the learned Assistant Sessions Judge had been entrusted with the trial of the accused persons with the full knowledge that on conviction the accused persons could be punished with a term of imprisonment not exceeding 7 years
In its revisional jurisdiction the High Court could exercise its powers only to correct any mistakes made by the learned trial judge
The High Court could therefore at the most say that the trial judge should have inflicted the highest punishment it had been empowered by the Code to impose
The High Court could not at the revisional stage it was further argued insist upon a higher punishment being awarded by the trial court than 7 years  rigorous imprisonment
The power of the High Court to enhance a sentence is contained in sub section
1 of section 439 of the Code which clothes the High Court with the powers of a Court of Appeal under the Code as also the power to enhance the sentence
Sub section
1 itself does not contain any words of limitation on the power to enhance the sentence
Hence the High Court could impose any sentence up to the maximum limit prescribed by the Indian Penal Code for a particular offence
In this case therefore the High Court could impose the maximum sentence of imprisonment for life under section 395 Indian Penal Code
Is there anything in the Code of Criminal Procedure which limits that power  The fact that the trial of the case was entrusted to a court with a limited jurisdiction in the matter of sentence could not be used to impose a limit on the power of a High Court to impose a proper and 98 772 adequate sentence
That the Legislature did not intend to impose a limit on the power of the High Court to inflict an adequate sentence in a trial held by a Court of Session is made clear by the provisions of sub section
3 of section 439 Criminal Procedure Code which is in these terms  3 Where the sentence dealt with under this section has been passed by a Magistrate acting otherwise than under section 34 the Court shall not inflict a greater punishment for the offence which in the opinion of such Court the accused has committed than might have been inflicted for such offence by a Presidency Magistrate or a Magistrate of the first class
 Section 32 of the Code lays down the sentence which magistrates may ordinarily impose which is a term of imprisonment not exceeding two years in the case of Presidency Magistrates and Magistrates of the first class omitting all reference to fine
But in certain specified areas section 30 empowers the Government to invest a District Magistrate or a Magistrate first class with the power to try as a magistrate all offences not punishable with death
A magistrate so empowered under section 30 may pass a sentence of imprisonment for a term of 7 years or less
Thus the powers of an Assistant Sessions Judge under section 313 and of a magistrate specially empowered under section 30 to impose a sentence of imprisonment are the same the terms of section 31 3 and section 34 being almost identical
From the terms of section 4393 it is clear that the only limitation on the power of a High Court to impose punishment is in respect of cases tried by magistrates other than those specially empowered under section 30 and thus vested with higher powers of punishment under section 34
Sub section 3 aforesaid does not impose any limits on the powers of the High Court in cases dealt with by a magistrate specially empowered under section 30
Hence in such a case the High Court has the power to impose a sentence higher than that which could have been imposed by such a magistrate
That sub section has no reference to a trial held by a Court of Session
If the High Court can enhance the sentence beyond 773 the maximum sentence which could be awarded by a magistrate specially empowered under section 30 and acting under section 34 there is no reason to hold that the High Court s power in respect of enhancing the sentence in a trial held by an Assistant Sessions Judge should be limited in the way suggested on behalf of the appellants
Sub section 3 of section 439 thus makes it clear that there is no limitation on the power of the High Court to enhance a sentence to the maximum prescribed by the Indian Penal Code except in cases tried by magistrates other than those especially empowered under section 30 Criminal Procedure Code
The learned counsel for the appellants very properly informed us that there are some reported decisions of some of the High Courts which have gone against his contention and that there is no decision which has taken a view in support of his contention
In our opinion there is no provision in the Code of Criminal Procedure which limits the power of the High Court in the way suggested on behalf of the appellants and there are no reasons which militate against the decision of the High Courts taking that view
The case relied upon on behalf of the appellants in support of their second contention Bed Raj vs The State of Uttar Pradesh 1 also seems to point to the same conclusion as will appear from the following observations at p 584  Now though no limitation has been placed on the High Court s power to enhance it is nevertheless a judicial act and like all judicial acts involving an exercise of discretion must be exercised along wellknown judicial lines
 On the second contention there is no doubt that the question of sentence is a matter of discretion which has to be exercised in a judicial way that is to say the sentence imposed by the trial court should not be lightly interfered with and should not be enhanced
unless the appellate court comes to the conclusion on a consideration of the entire circumstances disclosed in the evidence that the sentence imposed is inadequate
In the instant case the High Court has 1  774 pointed out that the incidence of the offence of dacoity has gone up to such an extent that in proved cases of serious dacoity like the one in hand deterrent punishment is called for
The High Court was therefore justified in imposing the sentence of 10 years  rigorous imprisonment
In view of the circumstances disclosed in the case as indicated above it cannot be asserted that the sentence as enhanced by the High Court is excessive
The appeal is accordingly dismissed
Appeal dismissed


Summary:
The appellants were tried before an Assistant Sessions judge for the offence of dacoity under section 395 Indian Penal Code
Under 3
313 Code of Criminal Procedure as it then stood the Assistant Sessions judge could award a maximum sentence of seven years rigorous imprisonment
He convicted the appellants and sentenced them to five years rigorous imprisonment each
The appellants appealed to the High Court and the High Court in its revisional jurisdiction issued a notice to the appellants for enhancement of sentence
The High Court dismissed the appeal and enhanced the sentence to ten years rigorous imprisonment
Held that the High Court had in its revisional jurisdiction under section 439 Code of Criminal Procedure the power to enhance the sentence beyond the limit of the maximum sentence that could have been imposed by the trial Court
Bed Raj vs The State of Uttar Pradesh   referred to