judgement:
Appeals Nos.
1091 1103 of 1964.
Appeals from the judgment and decree dated April 17, 1957 of the Patna High Court In Second Appeals Nos.
1447 of 1950 etc.
C.B. Agarwala and D. Goburdhun, for the appellant (in all the appeals).
U.P. Singh and K.C. Dua, for respondents Nos. 3 and 4 (in C.A. No. 1091 of 1964) respondent No. 3 (in C.A. No. 1092 of 1964) respondent No. 4 (in C.A. No. 1093 of 1964), respondent No. 7 (in C.A. No. 1094 of 1964), respondent No. 3 (in C.A. No. 1096 of 1964) respondents Nos. 4 and 5 (in C.A. No. 1095 of 1964) and respondent No. 4 (in C.As.
1099, 1100 and 1101 of 1964).
The Judgment of the Court was delivered by Hidayatullah, C.J.
These are 13 appeals by certificate against the common judgment in second appeal, April 17, 1957, of the High Court of Patna.
The appellants are the original plaintiffs.
The appellants had filed 12 title suits for ejectment in the court of the Second Munsif at Buxar.
Eleven suits were dismissed.
It was held that the plaintiffs had no title to suit lands.
One suit was compromised and decreed in terms of the compromise.
Two other suits one by Kedar Nath (one of the plaintiffs in the 12 title suits) and the other by one Udholal were filed for rent for 1335 1337 Fasli in respect of some lands comprised in Survey No. 3385 of Mouza Buxar against the tenant Ram Chhabi Lal.
The two rent suits were heard together.
Kedar Nath was held to be the landlord and not Udholal.
The suit of the former was decreed and that of the latter dismissed.
On appeals filed by Udholal the decision was reversed.
Appeals by Kedar Nath to the High Court were dismissed on the ground that in the title suits from which eleven appeals were filed it was held by the High Court affirming the decision of the courts below that Kedar Nath had no title.
Since the success of the last two appeals depended on whether Kedar Nath had title or not it is not necessary to refer to them at this stage.
We shall deal with the other eleven appeals first.
in these appeals, plaintiffs and defendants 1 to 3 are common.
Plaintiffs are purchasers from the mortgagees of the suit 206 lands who had purchased the suit lands in an auction sale in execution of the mortgage decree.
Defendants 1 to 3 were the former owners of these suit lands and the other defendants were either purchasers at auction sales in execution of money decrees against the owners or transferees from the auction purchasers.
The suits concern plots formed out of two Survey Nos. 3384 and 3385.
It is thus that the other two suits get connected with the title suits because in those suits the rent of certain plots from Survey No. 3385 was involved.
The history of the plots is as follows : One Laxmi Narain was the previous owner of these 2 Survey Nos.
On his death his daughter 's sons Ram Narain Ram, Sheonarain Ram and Gopal Ram inherited these Survey Nos.
alongwith other properties.
The first two sons were defendants 1 to 2 in the suits and defendant 3 is the son of Sheonarain Ram.
In 1930 the other two brothers sued Gopal Ram for a partition.
Preliminary decree was passed on April 15, 1931 and the final decree on September 10, 1932.
Half share in the property went to Gopal Ram and the other half jointly to the other two brothers.
The suit Survey Nos.
came to the share of Ram Narain Ram and Sheonarain Ram.
On April 27, 1931 Ram Narain Ram executed a mortgage of a half share in 27 plots made in the two Survey Nos.
and some other property with Buxar Trading Co operative Society.
On April 20, 1933, the Society released Ram Narain Ram 'S share in the 27 plots from the mortgage by a registered release deed.
On September 20, 1932 Sheonarain Ram filed a suit for 'partition against Ram Narain Ram.
The preliminary decree was passed in May 1933, that is to say, after the release by the Society.
The two brothers divided the two Survey Nos.
half and half between them.
No final decree in this partition suit seems to have been passed.
Devendra Nath (one of the defendants) obtained settlement of 3 k 13 d of land out of Survey No. 3384 from Sheonarain Ram on June 10, 1933 and in execution of a money decree against Ram Narain Ram and Sheonarain Ram purchased on August 13, 1934 the remaining portion of Survey No. 3384 and Survey No. 3385.
He obtained possession on February 27, 1935.
He had obtained attachment of the two plots before judgment, on April 23, 1934.
Devendra Nath disposed of 3 k 13 d by settling them on his wife and she was one of the defendants in the suits.
Devendra Nath 's title depends on whet.her the release by the Society was valid and binding on the Society or not.
If the release was valid and binding on the Society, the Society could not obtain a decree in respect of these two Survey Nos.
and bring them to sale.
207 This is one of the points for consideration in these appeals.
The High Court and the court below have decided unanimously that the release was binding on the Society and Devendra Nath obtained no title.
On April 26, 1934, that is to say, before Devendra Nath 's purchase but after attachment by him, the Society applied to ,.he
Registrar, Co operative Societies for a mortgage award.
In that application the surety of Ram Narain Ram was also joined.
On August 16, 1934 a money award was given against Ram Narain Ram and his surety.
On September 20, 1934 the money award was cancelled and a preliminary mortgage award was passed.
Admittedly the mortgage award had the force of a mortgage decree.
The final mortgage award was made on May 28, 1935.
The award ordered sale of all .mortgage properties including the half share of Ram Narain Ram in survey Nos. 3384 and 3385.
No mention was made of the earlier release of the Survey Nos.
by the Society by a registered deed.
In execution of the decree the Society purchased the two Survey Nos.
on February 7, 1936 and obtained possession o.n July 20, 1937.
One Dwarikanath had a money decree against the Society and he attached the two disputed Survey Nos. and brought them to sale.
The Buxar Central Co operative Bank purchased the two Survey Nos.
in auction sale on February 8, 1940 obtaining possession on July 5, 1941.
On March 28, 1943 the Society and the Bank went into liquidation.
The right, title and interest of the Society and the Bank was sold by the common Liquidator to Kedar Nath including the 27 plots made in the two Survey Nos.
Kedar Nath 's purchase was on March 20, 1943 but he took the sale benami in the name of Dhanesar Pandey, who was plaint.
ill No. 2 in the title suits while Kedarnath was plaintiff No. 1.
The title of the plaintiffs Kedar Nath and Dhanesar Pandey is based on this purchase.
After the release of the two Survey Nos.
by the Society, Ram Narain Ram and Sheonarain Ram, and after his purchase, Devendra Nath, made settlement of the plots to various persons.
They are the remaining defendants in the suits and respondents in the various appeals before us.
The High Court has given a chart of these persons and the dates of pattas but as nothing turns upon these details it is not necessary to mention them here.
The plaintiffs (Kedar Nath and Dhanesar Pandey) in these title suits asked for declaration of title and possession.
Their case was that the release was void and inoperative and not binding on the Society.
Therefore, the mortgage award and the auction sale was binding on Ram Narain Ram and all those who derive title 208 from him.
Their next contention is that.
, in any event, the transfers to the defendants were effected during the pendency of the mortgage award proceedings and were affected by the doctrine of lis pendens.
These two grounds were not accepted by the High Court and the courts below and it is these two grounds which were urged before us in these appeals.
The other side seeks to avoid the effect of lis pendens by pleading that the mortgage award was claimed mala fide against the suit plots after their release and, in any event, there was attachment of these plots before the petition for the mortgage award was made.
Before we deal with these two points it may be mentioned at once that neither ground of appeal applies to the transfers by Sheonarain who was not a mortgagor and who was not affected by the release deed made by the Society.
Mr. C.B. Aggarwal frankly conceded that the transfer by him could not be assailed and must stand.
He, therefore, did not press Civil Appeals Nos.
1091, 1092, 1093 and 1094 of 1964.
These appeals are accordingly dismissed with costs.
We may first consider whether the release was binding on the Society or not.
When Ram Narain Ram mortgaged the property to raise a loan from the Society of which he was a member, half share in the plots belonged to him because these plots had fallen in the preliminary decree to.
the share of his brother Sheonarain Ram and himself.
That preliminary decree was passed on April 15, 193 1.
The Society had fixed a ceiling on the amount which could be borrowed, at Rs. 3000/ .
The mortgage deed recited that the amount borrowed was Rs. 3000/ with interest at Actually Rs. 1890/ were given as a loan.
The release deed, releasing the suit plots was executed in pursuance of a resolution of the Society (Res.
No. 4 dated April 4, 1933).
The release stated thus: " . relinquished and released the properties, specified below, from the debt due to the said Ram Narain Ram, to the said society, entered in the said mortgage bond, in favour of Ram Narain Ram .
The said property shall not be made liable for any debt of the said society nor shall any incumbrance be recovered from the said property.
The said property shall come in possession of Ram Narain Ram.
The said Ram Narain Ram shall have right to sell the property to keep the same in whatever ways he likes.
The said society neither has nor shall have any objection thereto.
" 209 Why the release was granted by the Society was stated in the following words: " .
A petition was filed on behalf of the said Ram Narain Ram in the meeting of the members in the presence of all the members of the society for releasing some land from the said mortgage in order to repay the debt.
of Rs. 500/ forming part of the debt due by the said Ram Narain Ram to the said co operative society which was put up before all the members and accepted by them . ".
It appears that Ram Narain Ram did not pay the amount of Rs. 500/ to the Society and the Society considered itself free to include these two plots, notwithstanding the release, in their application for an award decree.
In our opinion the release was binding on the Society.
The argument.
in opposition to the binding nature of the release is that it was conditional on payment of Rs. 500/ .
This is no true.
No. doubt the motive for the release was the payment of Rs. 500/ to the Society promised by Ram Narain Ram, but the payment was not made a condition of the release.
There was no attempt to release this amount from Ram Narain Ram.
Therefore, the release being absolute and unconditional and by a registered deed must be treated as binding.
It is open to the promisee to waive the performance of any part of the contract or to release any property from the operation of a 'mortgage or charge.
If he wishes his rights to continue in the.
event of some condition simultaneously imposed on the promisor, he must see that the release is made dependent on the performance by the promisor of his part of the agreement.
Here the Society merely released the two plots without making the payment a condition precedent, and the release operated.
That, however, is not the end of the matter.
The Society filed on April 5, 1934 a petit.ion for a mortgage award before the Assistant Registrar, Co operative Societies.
The petition is headed 'Petition for mortgage decree '.
The petition mentioned that the mortgage was made on April 27, 1931 and that the amount secured was Rs. 3,000/ with interest at 121/2% per annum.
The petition then described the property mortgaged and it included plots Nos.
3385 and 3384.
The amount due on December 31, 1933 was said to be Rs. 2440/3.
The relief asked for was: "We the punches therefore pray that a decree may be passed by your honour against the said member and he may be directed under the decree to pay the debt, principal and interest, amounting to Rs. 2440/3/ within 3 months, that in case of non payment this order may be passed that the entire amount may be realized by 210 auction sale of the mortgaged property and that if the mortgaged property would not be sufficient for the satisfaction of the entire amount of the decree the punches of the committee be allowed to pray for passing a personal decree against the said member.
" When the Registrar made his order he overlooked that a mortgage award had to be pass.ed.
On August 16, 1934 he ordered that an award jointly with sureties be issued.
However, on September 2, 1934, .he corrected Iris earlier order thus: "S1. '6.
Read along with S1.
By mistake of the 2nd Asst.
simple award was issued instead of Mortgage award.
Issue mortgage award and ask the C.B. to return the simple award which will be cancelled here.
Syed Ozair.
D.F.A. Addl.
A.R. 2 9 34.
" After 'this mortgage award which had the force of a preliminary decree, the Society on December 16, 1934 resolved that a final mortgage decree be obtained from the Assistant Registrar, and a final decree was obtained and the property brought to sale on February 7, 1936 and purchased by the Society itself with the permission of the court executing the decree.
Possession was obtained on July 20, 1937.
Therefore, litigation in respect of this mortgage remained pending from April 5, 1934 to July 20, 1937.
Under Explanation to section 52 of the the whole of this period denoted pendency of the proceeding for purposes of application of the doctrine of lis pendens.
All the leases made by Devendranath were after the proceedings commenced.
Devendranath purchased the right title and interest of Ram Narain Ram on August 13, 1934.
His acquisition was prima facie hit by the doctrine of lis pendens.
Three arguments were advanced before us to meet this situation and we shall now deal with them seriatim.
The first argument is that there could be no lis pendens till August 16, when the money award was issued because a money suit for proceeding cannot lead to the application of the doctrine of lis pendens.
As a proposition of law the argument is sound but it is wrongly grounded on fact.
The proceeding was to get a mortgage award, the equivalent of a mortgage decree.
The Court made a mistake and treated it as a proceeding for a money decree.
When the court corrected its,order, the mortgage award related back to the petition as made and the whole of the proceeding must be treated as covered by the doctrine.
We cannot, therefore, accede to the suggestion that the doctrine did not apply; at any rate, on this suggested ground.
211 The second ground of attack is that before the proceedings commenced before the Registrar these fields had been attached and, therefore, the doctrine of lis pendens again cannot apply.
We are unable to accept this argument either.
If the property was acquired pendente lite, the acquirer is bound by the decree ultimately obtained in the proceedings pending at the time of acquisition.
This result is not avoided by reason of the earlier attachment.
Attachment of property is only effective in preventing alienation but it is not intended to create any title to the property.
On the other hand, section 52 places a complete embargo on the transfer of immovable property right to which is directly and specifically in question in a pending litigation.
Therefore the attachment was ineffective against the doctrine.
Authority for this clear position is hardly necessary but if one is desired it will be found in Moti Lal vs Karrab ul Din and others(1).
Lastly it was contended that the sale was by court auction and the doctrine of lis pendens would not apply to such a sale.
This point was considered in Samarendra Nath Sinha and Anr.
vs Krishna Kumar Nag(2) by one of us (Shelat, J.) and it was observed as follows : " .
The purchaser pendente lite under this doctrine is bound by the result of the litigation on the principle that since the result must bind the party to it so it must bind the person driving his right, title and interest from or through him.
This principle is well illustrated in Radhamadhub Holdar vs Monohar(3) where the facts were almost similar to those in the instant case.
It is true that section 52 strictly speaking does not apply to involuntary alienations such as court sales but it is well established that he principle of lis pendens applies to such alienations.
(See Nilkant vs Suresh Chandra(4) and Moti Lal vs Karrab ul Din(1). ' ' This ground also has no validity.
Lastly it was argued that if the fields were released from the operation of the mortgage they could not be made the, subject of a mortgage decree, and whatever was done in the mortgage proceedings was not of any consequence.
this there are two answers.
Firstly, the respondent before the Registrar (Ram Narain Ram) made no objection to ,the inclusion of the plots in the petition for a mortgage award.
Secondly, the doctrine of lis pendens applies irrespective of the strength or weakness of the case on one side or other.
See Gouri Dutt Maharaj vs Sukur Mohammed and Ors.(5).
There is, however, one condition that (1) 24 I.A. 170.
(3) 15 I.A. 97.
(2) ; (4) 12 I.A. 171.
(5) 75 i.
A. x65.
212 the proceedings must be bona fide.
Here no doubt the Society knew that the plots had been released from the mortgage, but it was also clear that the release was to enable Ram Narain Ram to dispose of some of the plots and pay Rs. 500/ to the Society.
This amount was never paid and the Society must have bona fide felt that the plots still remained encumbered.
In fact the attitude of Ram Narain Ram in not claiming that these plots be removed from the mortgage award shows that he too felt that this was the true position.
In Gouri Dutt Maharaj 's(1) case referred to by us, it was said that if the proceedings were bona fide, the applicability of section 52 was not avoided.
For the above reasons we are clear that the purchase by Kedarnath was protected by the doctrine of lis pendens, the prior transfer to the defendants notwithstanding.
In this view of the matter the judgment of the High Court cannot be sustained.
The appeals will, therefore, be allowed.
The judgment and decree of the High Court will be set aside and the suits of the appellant will be decreed with costs throughout.
In this Court the costs will be one set.
R.K.P.S. Appeals allowed.
(1) 75 X.A. 165 L 1 Sup./70 6 7 70 GIPF.

summary/full:
One R executed a mortgage of his share in two survey Nos.
to a Cooperative Society.
On his application and in order to enable him to repay a sum of Rs. 500/ , the Society released the property in 1933, but R never paid the amount to the Society.
The Society filed an application for a mortgage award on April 5, 1934 and the Assistant Registrar made an award in the nature of a preliminary decree, on December 16, 1934.
Thereafter a final mortgage decree was passed by the Assistant Registrar and the two survey nos.
were brought to sale and purchased by the.
Society and possession was obtained on July 20, 1937.
Meanwhile, one D obtained attachment before judgment of the two survey nos., as the property of R, in a suit for money against R, and, in execution of the money decree, purchased the two survey nos.
on August 13, 1934.
In 1943, the Society went into liquidation and the liquidator sold the properties of the Society and the appellant bought the two.
survey nos.
He filed a suit for a declaration of his title and possession of the properties in the two, survey nos.
from various persons who were in possession of the properties under R and D.
The High Court dismissed the .suit.
In appeal to this Court, HELD: (1) The motive of the release, in 1933, of the properties by the Society in favour of R was the payment of Rs. 500/ by R to the Society, but it was not a condition Of the release.
Therefore, the release was binding on the Society.
[209 D E] (2) But R did not object to the inclusion of the items in the mortgage award.
Therefore, the Society must have bona fide felt that the properties remained encumbered.
[211 G] (3) The proceedings in respect of the mortgage were pending from April 5, 1934 to July 20, 1937.
The proceedings were for obtaining a mortgage award equivalent to a mortgage decree and not for a money decree.
The fact that they were attached before judgment in D 's suit does not affect the application of the doctrine of lis pendens.
Attachment is only effective in preventing alienation and does not create title to property.
If in fact, the property was.
acquired pendente lite, the acquirer is bound by the decree ultimately obtained.
Therefore, D 's purchase on August 13, 1934, was hit by the. doctrine.
of lis pendens in section 52 of the .
Since D 's purchase was hit by the doctrine the properties continued to be those of the Society and hence, the appellant was entitled to them.
[210 E, G H; 211 A C] 205 Samarendra Nath Sinha & Anr.
vs Krishna Kumar Nag, ; , followed.
Moti Lal vs Karrab ul Din & Ors.
24 I.A. 170 and Gouri Dutt Maharaj vs Sukur Mohammed and Ors.
75 I.A. 165, applied.


judgement:
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.
R.V. Pillai and Subodh Markandey, for the appellants.
H.R. Khanna, B.D. Sharma for S.P. 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 I.P.C. 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 I.P.C. and sentenced each of them to suffer rigorous imprisonment for six months 'and to a fine of Rs. ' 200/or 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 I.P.C. He did not pass any fresh sentence on the third count under section 147 I.P.C. 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 545(1)(b) 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 I.P.C. 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.
CI/70 3 230 a fine of Rs. 100 and one month 's further imprisonment in default under section 325 read with section 149 I.P.C. 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 (1)(a) 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 no.t exceeding two years and a fine not exceeding Rs. 2,000/ .
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 417(1) 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 423(1)(a) 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 423(1 ) 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.
(1)(b) 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 o,f 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 423,426, 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 31(1) and section 423(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 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 Emperor(2) 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 Emperor(3) which went up to the Nagpur Judicial Commissioner 's court by way of revision, the appellants had been convicted under section 324 I.P.C. 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 Sheik(4), Muthiah vs Emperor(5), Parameswara Pillay vs Emperor(6) 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 King(7), Emperor vs Md. Yakub Ali(8), Lakshminarayana vs Apparao(9) and Emperor vs Abbas Ali(10) are on the same lines.
A different note was however struck in Public Prosecutor vs Annamalai(1).
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) A.I.R. 1940 Rangoon 118 (8) 45 Allahabad 594 (9) A.I.R. 1950 A.P. 530.
(10) A.I.R. 1935 Nagpur 139 (11) A.I.R. 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 439(3) 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 Pradesh(2) 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 Yusufalli(3), Emperor vs Muhammad Yakub Ali(4) Maung E. Maung vs The King(5) and In re Tirumal Raju(6) 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) A.I.R. 1947 Madras 368.
(2) ; (3) 39 Calcutta/57 (4) 45 Allahabad 594.
(5) A.I.R. 1940 Rangoon 118 (6) A.I.R. 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 423(1)(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 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.
P.C. 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.
G.C. Appeal partly allowed.

dataset_name: IN-Abs

summary/full:
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 423(1) (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 423(1) (a) pass a sentence "according to law" and thus it did not enjoy the powers which it otherwise might have exercised under section 31(1) 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 s.]23 ( 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 i.e. 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 some.thing 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 423(1) (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, A.I.R. 1940 Rang.
118, Emperor vs Md. Yakub Ali.
45 Allahabad 594, Lakshminarayana vs Apparao, A.I.R. 1950 A,P. 530, Emperor
Abbas Ali, A.I.R. 1935 Nag.
139, Public Prosecutor vs Annamalai, A.I.R. 1955 Mad. 608, In the Tirumal Raju, A.I.R. 1947 Mad. 368, Jagat Bahadur Singh vs State of Madhya Pradesh, [1966]2 S.C.R. 822 and Emperor vs Abasali Yusufalli, 39 Calcutta 157, referred to.