Summarize the following court judgment. 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. 11872/73/P 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 4(a) of the Act for keeping a gaming house. The Presidency Magistrate who tried the case	 found the first appellant guilty under section 4(a) 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 4(a) 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 (1)(b) 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 106(3)	 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 Emperor(1) is relied on. In that case	 as in the present	 the accused was convicted both under section 4(a) and section 5 of the Act	 but a sentence was passed under section 4(a) and none under section 5. On appeal	 the learned Judges set aside the conviction under section 4(a)	 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 Ali(2)	 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) A.I.R. 1940 Bom. (2) A.I.R. 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 423(1)(b) 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 Ali(1) was followed in Pradip Chaudhry vs Emperor(2). 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 423(1)(b). It only provides for altering the finding and maintaining the sentence	 (1) A.I.R. 1938 cal. (2) A.I.R. 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 4(a) 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 423(1) (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 4(a)	 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 423(1)(d)	 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 Emperor(1) 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 439(1) 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 439(2)	 an order of enhancement could not be passed	 unless the accused bad an opportunity of being heard in his defence	 and under section 439(6)	 the accused is also entitled	 when proceedings are taken under section 439(2)	 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 439(2)	 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) A.I.R. 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 439(2). 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 439(2). In the result	 the appeal is dismissed.

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 4(a) of the Act for keeping a gaming house. The Presidency Magistrate	 who tried the case	 found him guilty under section 4(a) 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 4(a)	 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 423(1)(b) 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 423(1)(b) of the Code of Criminal Procedure was not applicable to the case	 the High Court had power to pass the sentence under section 423(1)(d). 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 423(1)(d) 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 439(2)	 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 (A.I.R. 	 Superintendent and Remembrancer of Legal Affairs vs Hossein Ali (A.I.R. and Pradip Chaudhry vs Emperor (A.I.R. 1946 Pat. 235)	 disapproved.