Case ID: 533

Judgment:
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 31(3) 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 31(3) 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 439(3)	 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. 31(3) 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.