# fl)~ N. Satyt.JM1ho11 v. f(. Subramanyan and othtrs

- **Citation:** [1955] 2 S.C.R. 94
- **Court:** Supreme Court of India
- **Decided:** 1955
- **Case number:** Criminal Appeal No. 20 of 1954
- **Bench:** S. R. Oas, Bhagwati, Imam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/fl-n-satyt-jm1ho11-v-f-subramanyan-and-othtrs-1274
- **Pages:** 71

## Headnote

Criminal Procedure Code, 1898 (Act V of 1898), s. 439(1)(2)!6)
-Appellant convicted by Magistrate-His appeal to High ·Court
dismissed summarily-After summary dismissal
of
that
appeal
Stat.J Government filed revision application to High Court for enhancernent of sentence-Notice issued to appellant to show cause
against enhanrnment under s. 439(2)-Whether appellant entitled to
show cause ai;ainst his conviction under s. 439!6) of Code of Criminal Procedure.
The appellant in this appeal was convicted by the Presidency
Magistrate, Bombay, of an offence under s. 66(b) of the Bombay
Prohibition Act (Act XXV of 1949) and sentenced to undergo imprisonment till the rising of the court and to pay a fine of Rs. 250
or in defaulr to undergo rigorous imprisonment for one month. He
preferred an appeal to the Hi~h Court at Bombay, which was summarily dismissed. After the dismissal of that appeal, the State of
Bombay made a revision application to the High Court praying for
enhancement of the sentence. Notice was issued to the appellant
under s. 439(2) of the Code of Criminal Procedure to show cause
against enhancement.
I
~
-
2 s.c.R.
SUPREME COURT REPORTS
95
l9SS
U.J.~. Chdp-a
.v.
Held that the summary dismissal of the appeal preferred by the
appellant did not preclude him from taking advantage of the provisions of s. 439(6) of the Code of Criminal Procedure and showing
cause against his conviction when he was subsequently called upon
to show cause why the sentence imposed on him should not be enSlale of Bombay
hanced.
Per DAS J.-Sub-section (6) of section 439 of the Code of
Criminal Procedure confers a new and a valuable right on the accused. The language used in sub-section (6) does not, in terms,
place any fetter on the right conferre~ _by it on the accused. This
new right is not expressed to be co!1dmoned or c~n~rolled by a~y
thing that may have happened pnor to the rev1s10n apphcanon
under sub-section ( 1) for enhancement of sentence. Therefore, whenever there is an application for enhancement of sentence, ·a notice
must issue under sub-section (2) to the accused person to show cause
and whenever such notice is issued, the accused person must, under
sub-section (6), be given an opportunity, in showing cause against
enhancement, also to show cause against his convictiop.
It is not correct to say that sections 421, 435 & 439 of the Code
give the court a discretion not to decide the appeal or revision
brought before it. The discretion conferred on the High Court does
not authorise it to say that it will not look at the appeal or revision.
The Court's bounden duty is to look into the appeal or revision and
dedde it, although in the process of arriving at its decision it has a
very wide discretion.
There is no reason for holding that there is a merger or replacement of the Judgment of the trial Court into or by the Judgment of
the High Court only when the appeal or revision is heard on notice
to the respondent and either allowed wholly or partially or dismissed but not when it is heard without notice to the respondent and
dismissed summarily; for this purpose it makes no difference whether the dismissal is summary or otherwise, and there is a judgment
of the High Court in all the three cases. The only difference in
substance is that in the first two cases the judgment is final qua both
parties while in the third case, i.e., when an appeal or revision by
the accused is summarily dismissed without issuing notice to the
State, the judgment is final only qua the accused who preferred the
appeal or revision. This is based not on any technical doctrine of
res judicata, for there is none in criminal cases, but on the general
principle of finality of judgment. In the first two cases there can,
after the judgment, be no further application by the State for enhancement of sentence and therefore no question of the application
of section 439(6) can arise. In the last case, i.e., in case of summary
dismissal the Judgment not being final qua the State, t

## Text

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fl)~
N. Satyt.JM1ho11
v.
f(. Subramanyan
and othtrs
Sinhs J.
1955
March 25
94
SUPREME COURT REPORTS
[l 955]
a service is not an essential function of a sovereign
sta·te. It cannot be rainsaid that the Government in
the Postal Department is rendering a very useful service
and
that the appellant has by his
contract
with the Government undertaken to render that kind
of service on a specified route. The present case is a
straightforward illustration of the kind of contract
contemplated by section 7(d) of the
Act.
At
all
material times the appellant has been directly concerned, for his own benefit, in the contract of carrying mail bags and postal articles entered into by him
with the Government in the Postal Department.
For the reasons aforesaid we have not the least
hesitation in holding that the conclusions arrived at
by the Tribunal are entirely correct.
The appeal is
accordingly dismissed with costs.
A ppeaf dismiu('(f.
U..T.S. CHOPRA
v.
STATE OF BOMBAY.
[S. R. OAS, BHAGWATI and IMAM JJ.]
Criminal Procedure Code, 1898 (Act V of 1898), s. 439(1)(2)!6)
-Appellant convicted by Magistrate-His appeal to High ·Court
dismissed summarily-After summary dismissal
of
that
appeal
Stat.J Government filed revision application to High Court for enhancernent of sentence-Notice issued to appellant to show cause
against enhanrnment under s. 439(2)-Whether appellant entitled to
show cause ai;ainst his conviction under s. 439!6) of Code of Criminal Procedure.
The appellant in this appeal was convicted by the Presidency
Magistrate, Bombay, of an offence under s. 66(b) of the Bombay
Prohibition Act (Act XXV of 1949) and sentenced to undergo imprisonment till the rising of the court and to pay a fine of Rs. 250
or in defaulr to undergo rigorous imprisonment for one month. He
preferred an appeal to the Hi~h Court at Bombay, which was summarily dismissed. After the dismissal of that appeal, the State of
Bombay made a revision application to the High Court praying for
enhancement of the sentence. Notice was issued to the appellant
under s. 439(2) of the Code of Criminal Procedure to show cause
against enhancement.
I
~
-
2 s.c.R.
SUPREME COURT REPORTS
95
l9SS
U.J.~. Chdp-a
.v.
Held that the summary dismissal of the appeal preferred by the
appellant did not preclude him from taking advantage of the provisions of s. 439(6) of the Code of Criminal Procedure and showing
cause against his conviction when he was subsequently called upon
to show cause why the sentence imposed on him should not be enSlale of Bombay
hanced.
Per DAS J.-Sub-section (6) of section 439 of the Code of
Criminal Procedure confers a new and a valuable right on the accused. The language used in sub-section (6) does not, in terms,
place any fetter on the right conferre~ _by it on the accused. This
new right is not expressed to be co!1dmoned or c~n~rolled by a~y
thing that may have happened pnor to the rev1s10n apphcanon
under sub-section ( 1) for enhancement of sentence. Therefore, whenever there is an application for enhancement of sentence, ·a notice
must issue under sub-section (2) to the accused person to show cause
and whenever such notice is issued, the accused person must, under
sub-section (6), be given an opportunity, in showing cause against
enhancement, also to show cause against his convictiop.
It is not correct to say that sections 421, 435 & 439 of the Code
give the court a discretion not to decide the appeal or revision
brought before it. The discretion conferred on the High Court does
not authorise it to say that it will not look at the appeal or revision.
The Court's bounden duty is to look into the appeal or revision and
dedde it, although in the process of arriving at its decision it has a
very wide discretion.
There is no reason for holding that there is a merger or replacement of the Judgment of the trial Court into or by the Judgment of
the High Court only when the appeal or revision is heard on notice
to the respondent and either allowed wholly or partially or dismissed but not when it is heard without notice to the respondent and
dismissed summarily; for this purpose it makes no difference whether the dismissal is summary or otherwise, and there is a judgment
of the High Court in all the three cases. The only difference in
substance is that in the first two cases the judgment is final qua both
parties while in the third case, i.e., when an appeal or revision by
the accused is summarily dismissed without issuing notice to the
State, the judgment is final only qua the accused who preferred the
appeal or revision. This is based not on any technical doctrine of
res judicata, for there is none in criminal cases, but on the general
principle of finality of judgment. In the first two cases there can,
after the judgment, be no further application by the State for enhancement of sentence and therefore no question of the application
of section 439(6) can arise. In the last case, i.e., in case of summary
dismissal the Judgment not being final qua the State, the State may
apply for enhancement of sentence and if it does the accused becomes entitled again to show cause~ against his conviction also by
reason of the special provisions of section 439( 6).
Per BllAGWATI and IMAM JJ.-A Judgment pronounced by
the High Court in the exercise
of its appellate or revisional
J9jj
U.J.S. <:Mya
• Y.
Slot< of .........,,
96
SUPREME COURT REPORTS
Ll955
jurisdiction after issue oi a notice and a full hearing in
the
presence of both the parties ¥.'ould certainly be arrived at after
due consideration of the evidence and all arguments and would
therefore be a final judgment and such judgment when pronounced
would replace the ju_dgment of the lower court, thus constituting the only final judgment to be executed m accordance with
law by the court below. When however a petition of appeal pr<!-
sented by a convicted perrnn from jail is summarily dismissed under
s. 421 or a revision application made by him is dismissed summarily
or in limine without hearing him or his pleader what the High
Court does in such a case is to rl!f use to entertain the petition of
appeal or the revision application and the order passed by the High
Court-"dismissed or rejected" cannot be said to be an expression
of the opinion of the court arrived at after due consideration of the
evidence and all the arguments.
No notice for enhancement of sentence can be issued by the
High Court when a judgmont is pronounced by it after a full hearing
in the presence of both the parties either in exercise oi its appellate
or its revisional jurisdiction. Such notice for cnhanccincnt of sentence can be issued by it either suo motu or at the instance of an
interested party when the judgment of the lower court suhsim and
is not replaced by its O\VO judgment given in th!.! cxen:be of its
appellate or re•·isional juri;diction, When the Judgment of the lower
court has been under it~ scrutiny on notice being issued to 1 he
opposite party and on a full hearing acrnrdecl to both the P"rtics
notice for enhancement of sentence 1...~u1 only be i~sued by ir befCJr:!
it pronounces its judgmenc replacing that of the lower court. When
such hearing is in progre$; it is incumbent upon the High (~ourt or
the opposite party to m"ke up its mind before the judgment is
pronounced whether a notice for enhancement of sentence should
issue to the accused.
Case-law discussed.
CRIMINAL
APPELLATE
JURISDICTION:
Criminal
Appeal No. 20 of 1954.
Appeal from the Judgment and Order dated
the 26th August, 1953, of the Bombay High Court in
Criminal Revision Application No. 518 of 1953 arising
out of the Judgment and Order dated the 9th December, 1952, of the
Court of Presidency
Magistrate,
Bombay, in Case No. 3442/P of 1952.
S. P. Verma, for the appellant.
M. C. Setalvad, Attorney-General for India (Poms
A. Mehta and P.O. Cokhale, with hirnl, for the respondent.
2S.C.R.
SUPREME COURT REPORTS
97
1955. March 25. The following Judgments were
delivered.
1955
U.J.S. Chapra
v.
DAS J.-The appellant before us was on the 9th State of Bombay
December, 1952 convicted by the Presidency Magistrate, 13th Court, Bombay, of. an offence under section 66(b) of the Bombay Prohibition Act (Act XXV
of 1949) and sentenced to undergo imprisonment till
the rising of the Court and to pay a fine of Rs. 250
or to undergo rigorous imprisonment for one month.
The appellant preferred an appeal to the High Court
of Judicature at Bombay but his appeal was summarily dismissed by a Bench of that Court on the
19th January 1953. After the dismissal of that appeal
the State of Bombay made a Criminal Revision
application to the High Court for enhancement of the
sentence. Notice having been issued to the appellant
under section 439(2) of the Code of Criminal Procedure, learned counsel for the appellant claimed the
appellant's right under section 439(6) to show cause
against his conviction. This tl1c High Court did 11ot
permit him to do. The High Court, however, did not
think fit to make any order for enhancement of sentence. · On an application made on behalf of the appellant the High Court of Bombay has given leave to
the appellant to appeal to this Court and granted a
certificate of fitness under article 134(l)(c) of the Constitution of India.
The question for our consideration in this appeal
is whether the summary dismissal of the appeal preferred by the appellant precluded him from taking
advantage of the provisions of section 439(6) of the
'Code of Criminal Procedure when he was subsequently
called upon to show cause why the sentence imposed
upon him should not be enhanced. The question
depends for its answer upon a true construction of
section 439. That section, so far as it is material for
our present purpose, reads asfoJI.ows: -
"439. (1) Jn the case of any proceeding the record of which has been called for by itself or which
has been reported for orders, or which otherwise comes
to its knowledge, the High Court may, in its discre-
1955
U.J.S.CMp/'a
v.
State <If Bombay
DasJ.
98
SUPREME COURT REPORTS
[1955]
tion, exercise any of the powers conferred on a Court
of Appeal by sections 423, 426, 427 and 428 or on a
Court by section 338, and may enhance the sentence;
and when the Judges composing the Court of Revision are equally divided in opinion, the case shall be
disposed of in the manner provided by section 429.
(2) No order under this section shall be made to
the prejudice of the accused unless he has had an
opportunity of being heard either personally or by
pleader in his own defence.
(3) ......................... ..
(4) ............................ ..
(5) Where under this Code an appeal lies and no
appeal is brought, no proceedings by way of revision
shall be entertained at the instance of the party who
could have appealed.
(6) Notwithstanding anything contained in
this
section, any convicted person to whom an opportunity
has been given under sub-section (2) of showing cause
why his sentence should not be enhanced shall,
in
showing cause, be entitled also to show cause against
his conviction".
For a correct appreciation of the real meaning, import and scope of the provisions of sub-section (6) of
section 439 it will be necessary to bear in mind its
historical background. In England there is no provision for an appeal by the Crown either against an
order of acquittal or for the enhancement of sentence.
There the person convicted has a right of appeal both
against his conviction and the sentence imposed upon
him. Under the English criminal procedure, therefore, the question of enhancement of sentence only
comes before the.Court of Criminal Appeal when there
is an appeal by the convicted accused. In this country
the provisions relating to the Court's power of enhancement of sentence have undergone
radical changes
from time to time. Section 407 of the Code of Criminal
Procedure, 1861 prohibited any appeal from acquittal.
Express power was given to the appellate Court to
reduce the sentence (sections 425 and 426) and like
power was given to the Sudder Court as a Court of
revision (sections 405 and 406). I find no provision
2S.C.R.
SUPREME COURT REPORTS
99
1955
in that Code authorising the Sudder Court to enhance
the sentence.
The Code of Criminal Procedure of
u;1.s~,Chopra
1872. however, by section 272 permitted the Govern- srare qf Bombay
ment to file an appeal from
acquittal. This
~as
DasJ.
repeated in <;ection 417 of the Code of 1882 which
corresponds to section 417. of the present Code. Section 280 of the Code of 1872 expressly authorised all
appellate Courts to enhance the sentence. This power
of enhancement. however. was taken away from the
appellate Courts by section 423 of the Code of 1882
now reproduced in section 423 of the present Code and
was vested in the High Court under section 439 of the
Code of 1882 to be applied in exercise of its revisional
power. This has been continued in our present section
439.
This shows that the Legislature thought
that
this extraordinary power should be exercised only hy
the High Court and no other Court. A practice, however. appears to have grown up that in cases coming
up before it for enhancement of sentence the High
Court accepted the conviction as conclusive and proceeded to consider the question of enhancement of
sentence on
that
basis.
(See
Emperor v. Chi1110
Bhairava (') ). Then came Act XVIII of 1923 which. by
section 119. amended section 439 by adding the present
sub-section (6) and also amended section 369 by substituting the words "save as otherwise provided by this
Code or by any other law for the time being in force,
or. in the case of a High Court established by Royal
Charter. by the Letters Patent of such High Court. no
Court" for the words "No Court other than a High
Court" with which the section formerly opened. The
results of these amendments were W to make
the
judgment or order of the High Court passed in exercise of its original criminal jurisdiction final which it
was not under section 369 as it originally stood and
to make this finality subject to the other provisions
of the Code or of the Letters Patent of the High Court
and (ii) to nullify the practice referred to above and
to give a statutory right to an accused person who
was threatened with the risk of having the sentence
imposed on him by the trial Court or the lower appel-
[I 908] 1.L.R. 32 Dom. J 62.
/9SS
U.J.S. Chopra
v.
Stare of Bomba)'
DasJ.
100
SUPREME COURT REPORTS
[1955]
~ate Court enhanced by the High Court~")~ exercise of
its rcvisional jurisdiction suo motu .or at the instance
?f the State or in exceptional cases even of any .other
mterested person. Sub-sectioQ (6), therefore, confer~ a .new ~nd a very valuable right on the subject
winch 1s ~es1gncd to be a safeguard against the State
or other interested person making frivolous revision
apphcatLon for enhancement of sentence. The State
or the person interested must, if they ask for an enhancement of sentence, be prepared to face the risk of
the accused being altogether acquitted. It is the price
or quid pro quo which the State or other interested
person must be prepared to pay for the right or privilege of making an application for enhancement
of
sentence. The language used in sub-section (6) does
not, in terms, place any fetter on the right conferred
by it on the accused. This new right is not expressed
to he conditioned or controlled by anything that may
have happened prior to the rivision application under
sub-section (I) for enhancement. of sentence. The
section quite clearly says that whenever there is an
application for enhancement
of sentence
a notice
must issue under sub-section (2) to the accused person
to show cause and whenever such notice is issued the
accused person must, under sub-section (6), be given
an opportunity, in showing cause against enhancement, also to show cause against his conviction. The
sub-section does not say that he will have this right
to show cause against his conviction only if he has
not already done so. If the accused person appealed
against his conviction and sentence to an appellate
Court not being a High Court and lost that appeal
after a full hearing in the presence of his opponent it
must be conceded that he has had an opportunity to
show cause against his conviction but nobody will
contend that that circumstance will prevent him from
having another opportunity of showing cause agai~st
his conviction and sentence either by a substantive
application initiated by himself under sub-section ( 1)
or by way of defending himself when the State or
· other interested person applies to the High Court in
revision under section 439(1) for enhancement of
2S.C.R.
SUPREME COURT REPORTS
101
sentence and a notice is issued on him under section
1955
439(2). (See Kala v. Emperor (') ). Enhancement of
U.JS. Chopra
sentence is undoubtedly an encroachment upon the State 0/&mbay
liberty of the subject and a very serious matter for
--
an accused person and the Legislature may quite proDas!.
perly have thought that whenever an accused person
is sought to be laid open to the risk of having his sentence enhanced, the question of the legality and propriety of his conviction should be re-examined by the
High Court in the context of this new jeopardy, irrespective of anything that might have happened prior to
the application for enhancement of sentence and the
issuing of the notice on the accused to show cause. Indeed, there is. in sub-section (6) itself, an indication
in that behalf. This sub-section is to operate "notwithstanding
anything
contained
in this
section".
fn
some of the decisions (e.g. Emperor v.
Jorablwi ('), Crown v. Dhanna Lal ('),
Emperor v.
Inderchand (') and King v. Nga Ba Saing 0 ) it has
been said that the 11011 ohstante clause refers only
to sub-section (5).
I find it difficult to accept this
limited construction as correct.
Sub-section
(5)
only says that where an appeal lies and no appeal
is brought, no proceedings by way of revision shall
be entertained at the instance of the party who could
have appealed. The idea is that if a person has a
right of appeal he must first pursue that' remedy. In
other words, sub-section (5) is a disabling provision.
By providing tliat no proceedings by way of revision
shall be entertained at the instance of a person who,
having a right of appeal, does not avail himself of it,
the sub-section precludes such a person from initiating proceedings by way of revision. When the accused
person under sub-section (6)
shows cause
against
his conviction he himself initiates no proceedings but
only exercises the right to show cause
against his
conviction which is given to him because somebody
else has taken proceedings against him for enhancement and a notice has been issued on him under subsection (2).
In such a &ituation the accused person
(l) A.LR. 1929 Lah. 584.
(2) [1926] I.L.R. SO Bom. 785.
(3) [1929] I.L.R. 10 Lah. 241.
(4) A.J.R. 1934 B'Jm. 471.
(S) A.I.R. 1939 Rang. 392.
14-8 SCl/ND/82
1955
U .. T.S. Chopra
v.
SJa~e of Bonihay
Dasi.
•
102
SUPREME COURT REPORTS
[19551
is '?n the defensive and
the act
of showing cause
agamst pro~eedings initiated against him cannot properly be said to be proceedings "at his instance"
which the High Court, by sub-section (5), is enjoined
not to entertain. Strictly speaking sub-section (6)
needs no exen)ption from
sup-seCtion (5). In any
event and
assuming that the act of showing cause
against his conviction under sub-section (6) is tantam01mt t11 an application in revision ini.tiated by him
and such application is saved from the operation of
sub-section (5) by the non obstante clause, of sub-section (6) r do not see any reason for holding that the
non ohstante clause of sub-section (6) is concerned only
with sub-section (5). Although in showing cause
against his conviction
under
sub-sedion
(6)
the
accused person can urge all that he could do in an
appeal. if not more. this act of showing cause is, nevertheless, in form at least, a continuation and indeed an
integral part of the proceedings in revision initiated
by the Court suo · motu or by the State or any other
interested party. The general rule is that the exercise of re,•-'isional power is entirely a matter of discretion which is to be exercised by the High Court not
capriciously but on sound judicial principles. Indeed,
sub-section (I) itself lays stress oil this aspect of the
matter by t~e use therein of the words "in its discretion". The 11011 ohstante clause may well have been
designed to emphasise that the new right conferred
by sub-section (6) is a matter of right and does not
rest entirely on mere discretion of the Court. Further the non obstante clause has a special significance
even in a case where the accused person has already
had an opportunity, by means of an appeal or revision filed by him in the High Court, to show cause
against his conviction.
Under sub-section (1) there
can be a revision only of the judgment or order of
Criminal Courts inferior to the High Court and it
does not sanction any revision of the judgment or
order of the High Court itself. Therefore, where the
accused person has . unsuccessfully challenged the.
legality or pi:opriety of his conviction in an appeal
or revision application made by him before the High
2S.C.R.
SUPREME COURT REPORTS
103
Court he cannot again initiate a substantive applica1955
tion before the High Court under section 439(1) of the
u.1.s. Chopra
Code to re-examine his conviction or sentence, for State of Bombay
that will be to ask the Court to revise its own previous judgment or order, which the High Court cannot do under section 439(1). But suppose that the
dismissal of the appeal or revision application made
by the accused takes place in such
circumstances
that it still leaves it open to the State or other interested person to apply in revision for enhancement
of the sentence
and
proceedings are initiated hy
the Court or the State for enhancement of sentence
under section 439(1) and notice is issued on the
accused under section 439(2), there is nothing in subsection (6) which, in terms, prevents the accused, in
that situation, to again show cause
against
his
conviction and sentence.
The only argument
that
may, in those circumstances, be advanced with some
·semblance
of plausibility is that to let the accused
person to again challenge his conviction or sentence
under sub-section (6) is to cut across the provisions
of sub-section (1) and in effect to permit the accused
to ask the High Court to revise its previous order
although no substa11tive application could be initiated
by him under sub-section (1). It may well be that the
non obstante clause in sub-section (6) was also designed
to negative such an argument. Although ordinarily
no substantive application can be initiated· by an accused person, whose appeal or revision application has
once been dismissed by the High Court, for revision
or review of that order of dismissal, I can find no
difficulty in construing and reading section 439<6) RS
giving to the accused person, who is faced with the
risk of having his sentence enhanced, a second opportunity to· do what he had previously failed to do. In
other words, I see no incongruity in the Legislature
giving a new right of revision to the accused person
as a w~apon of defence in the context of a new off ensive taken by the State against him. ·Even if the act
of shmying cause under sub-section (6) is to be regarded as a revision, there was nothing to prevent
the Legislature, in the interest of the liberty of the
DasJ.
19S
U.J.S. Chopra
"·
State of Bombay
DasJ.
104
SUPREME COURT REPORTS
(1955]
subject, to provide for a limited right of revision of
the judgment or decision or order of the High Court
itself.
In my judgment that is what the Legislature
has done by adding sub-section (6) to section 439 and
the non obstante clause is intended to meet and repel
the objection that may possibly have been taken on
the score that, under sub-section (!), there can be no
revision by the High Court of its own order. In my
opinion, so iong as proceedings may be taken against
the accused person for enhancement of his sentence
and so long as notice may be issued on him to show
cause against enl1ancement, so Jong must he have. in
showing cause a,gainst enhancement of sentence, the
right, under sub-section (6), tb show cause against his
conviction, irrespective of anything that may
have
happened previously. That is how I read the sub-section. Indeed, in Emperor v. Mangal Naran (') McLeod,
C. J ., went further and expressed the view
that if,
after an appeal had been heard on its merits and dismissed, a notice to enhance sentence was issued, the
accused would still have the right to show cause against
his conviction although any attempt to set aside his
conviction would not have much chance of success.
For reasons to be stated hereafter I would rather say
that in such a situation no application for enhancement would lie at all and that consequently no que·stion would arise of th.e accused .person exercising his
right under sub-section (6). Tliis aspect of the matter
that I am trying to indicate and emphasise does not
appear to have bee.n sufficiently adverted to in
the
subsequent decisions of the different High Courts in
India except in one decision of a Full Bench of the
Lahore High CourL It will be convenient at this stage
to refer to tbose decisions.
·In Emperor v:Jorabhai (supra! the accused person
was convicted by the Sessions Judge. He preferred
an appeal to the High Court and a Bench of the High
Court dismissed the appeal on merits after full hearing of both sides after notice of appeal had been
served on the State. After the· delivery of the judgment an oral application was made to the Bench by
(I) (1924] I.L.R. 49 Bom. 4SO.
2 S.C.R.
SUPREME COURT REPORTS
105
the Government pleader for the enhancement of the
19;5
sentence. Notice was issued to the accused under secU.J.s. Chopra
tion 439(2) of the Code. The accused claimed the State 0/&,,,,bay
right, under sub-section (6) to challenge his conyiction.
Dasi
It was held by Fawcett and Madgavkar, JJ:, that sec-
·
tion 439(6) did not justify that would be tantamount
to a rehearing of the appeal on merits.
In the case of Ramlakhan Chaudhury v. Emperor(')
the accused's appeal had been previously dismissed
after a ft.Jll hearing and following the decision in
Emperor v. Jorabhai· (supra) it was held that the accused could not, under section 439(6), challenge the
correctness of his conviction for the second time while
showing cause against enhancement of sentence. The
same principle has been extended to cases where the
appeal of the accused person had been previously
dismissed by the H~gh Court summarily but after
hearing the accused or his advocate. (See Emperor
v. /Jatubai(
2), Emperor v. Haji Khamoo('), King v. Nga
Bu Saing (supra), Emperor v. Naubat(') ), to cases
where the jail appeal of the accused had previously
been dismissed summarily without hearing the accused
or his advocate (see Emperor v. Koya Partab('), Empemr v. Abdul Qayaum('), Ramchand v. Hirata!(') and
State v. Bhavani Shankar(') ) and to cases of dismissal
of revision petition filed by the accused after hearing
the advocate (see In re Saiyed Anif Sahib('), Emperor v. Sher Singh(''), Crown v. Dhanna Lal (supra))
and also to the case of an accused whose revision petition has been summarily dismissed (see Emperor v.
lnderchand (supra)). It has been held that for the purposes of section 439(6) it makes no different whether
the judgment or order of dismissal was made by the
High Court in appeal or in revision, or whether the
appeal ()r revision was dismissed summarily or after
a full hparing on notice to the State or other interested party and that any dismissal of the appeal or
(1) [1931) I.L.R. to Pat. 872.
(2) A.I.R. 1927 Born. 666.
(3) A.J.R. 1936 Sind 233.·
· (4) I.L.R. (1945) All. 527.
(5) [1930] I,L.R. 54 Boni. 822.
(6) A.I.R. 1933 All. 485.
(7) A.I.R. 1942 All. 339.
(8) I.L.R. [1952] 2 IW. 716 ..
(9) A.I.R. 1925 Mad. 993.
(10) · [1927)1.L.R. 8 Lah. 521.
1953
U.J.S. Chopra
"
State 'If Bombay
Dasi.
106
SUPREME COURT REPORTS
[19551
revision prevents the accused person from
availing
himself of the benefit of section 439(6). In two cases
Emperor v. Lukman (') and Emperor v. Shidoo(') the
Sind Court took up an intermediate position that the
accused person whose appeal had been dismissed summarily or after full hearing could not challenge his
conviction for the second time except to the extent
that the conviction was not founded on legal evidence
or was manifestly erroneous. In other words, he could
only go up to what was ordinarily permitted in a
revision. These two decisons appear to me, with respect, to be illogical and I need say no more about
them.
In the other cases noted above it has been
quite definitely held that the accused person whose
appear or revision application has been
previously
dismissed, summarily or after a full hearing, is not
entitled, when called upon to show cause why the
sentence ·should not be
enhanced, to question the
correctness of his conviction for the second time. In
other words, the previous
dismissal,
according to
these decisions, is an adjudication by the High Court
of the correctness of his conviction and on the principle of finality of judgment embodied in sections 369
and 430 of the Code of Criminal Procedure that adjudication cannot be called in question under section
439(6). It has been pointed QJJt in several cases
(Crown v. Dhanna Lal (supra), Emperor v. lnderchartd
(supra) and King v. Nga Ba Saing (supra) ) that subsection (6) opens with the words "notwithstanding
anything contained in this section" and not with the
words "nothwithstanding anything contained in this
Code" and from this the inference has been drawn that
while the sub-section is to operate notwithstanding
the provisions of sub-section (5) it cannot override the
other provisions of the Code,
and,
therefore,
the
operation of sub-section (6) is .conditioned or controlled by the principle of finality of judgment embodied
in s~ction 369 and section 430. Some learned Judges
have expressed the view (see In re Saiyed A nif Sahib
(supra), Crown v. Dhanna Lal (supra) that the words
"unless he has already done so" are to be read in sec-
(1) A.l.R. 1927 Sind 39.
(2l A.I.R. 1929 Sind 26.
2 S.C.R.
SUPREME COURT REPORTS
107
tion 439 (6), for this is to be implied from the prei 9ss
sumption of finality. In some cases see Emperor v.
U.J.s. Chopra
Sher Singh (supra)
and Nam Lakhan v. Emperor State o1"Bombay
(supra))
the decision has been placed also on
the
---
ground of the inherent incapacity of one Judge of the
DasJ.
High Court to reconsider the decision of another
Judge of that Court. It is necessary to examine these
grounds a little closely to ascertain their validity.
In order to appreciate the true meaning and exact
scope of sections 369 and 430 on which the argument
of finality of judgment is founded it, is necessary to
keep in view the general scheme of the Code. Part
VI of the Code deals with "Proceedings in Prosecutions". Chapter XV lays down the jurisdiction of the
Criminal Courts in Inquiries and Trials. I pass qver
Chapters XVI to XVIII. Chapter XIX prescribes
rules for the framing and joinder of charges. Chapters
XX to XXIII deal with different kinds of trials, e.g.,
trial of summons cases, warrant cases, summary trials
and trials before High Courts and Courts of Session.
Chapter XXIV contains ·general provisions as . to Inquirie~ and Trials.
Mode of taking al,'ld recording
evidence is prescribed by the sections grouped to:.
gether in Chapter XXV. Then comes Chapter XXVI
which is headed "Of the Judgment". Section 369 is
one of the sections included ·in this chapter. Chapter
xxvn provides for the submission of death sentences for the confirmation of the High Court.
Rulei:
relating to the execution, suspension, remission and
commutations of the sentences are to be found in
Chapters XXVIII and XXIX. Part VI ends with
~
Chapter XXX which is. not material for our present
purpose. Part VII deals with "Appeal, Reference and
Revision". Chapter XXXI is concerned with Appeals
and we find section 430 in this chapter. Chapter
XXXII provides for reference and revision, section
439 being one of the sections included in this chapter.
In view of the scheme summarised above there can
be no manner of doubt that the provisions of. the sei;·
tions collected in Chapter XXVI are concerned with
judgments pronounced by the trial Court. This conclusion is certainly reinforced by the language of some
19'5
U .J:S. Chopra
v.
Stai. qf Bombay
/Jt#J.
108
SUPREME COURT REPORTS
[1955]
of these sections. Thus section 366 which is the very
first section in this chapter refers to "The · .iudgment
in every trial in any Criminal Court of original jurisdiction."
Section 367 provides what must be contained in "every such judgment", that is to say judgment in an original trial. Section 369 runs as follows:
·~369. Court not
to alter Judgment.-Save
as
otherwise provided by this Code or by any other Jaw
for the time being in force or, "in the case of a High
Court by the Letters Patent ·Or other instrument constituting such High Court'', no Court, when it has
signed its judgment, shall. alter or review the same,
except .to correct a clerical error".
The opening words "save as otherwise provided by
this Code ...... constituting such· High Court" were
added by section 119 of the Amending Act XVIII of
1923 and were further adapted by Adaptation of Laws
Order, 1950. There can be no question that the finality
embodied in this section is only in relation to the
Court which pronounces the judgment, for it forbids
the Court, after it has signed its judgment, to alter or
review the same. In other words, after pronouncing
the judgment the Court that pronounces it become~
functus officio. There is indication in the Code' itself
that the purpose of section 369 is not to prescribe a
general rule of finality of all judgments of all Criminal
Courts but is only to prescribe finality for the judgment of the trial Court so far as the trial Court is
concerned.
That this section does not, by itself,
app!y to the judgment of an appellate Court is quite
obvipus, because if it did, there would have been no
necessity for enacting section 424 specifically making
the rules contained in Chapter XXVL which includes
section 369, applicable to the judgment of any appellate Court other than High Court, nor for again prescrihing by section 430 a rule of finality for judgments
and orders passed by an appellate Court.
Tt, therefore, follows that while, subject to the other provisions of the Code or any other law and of the Letters
Patent, the finality of section
369 attaches to the
judgments pronounced by all trial Courts includin2
the High Court. in the exercise of its original criminal
2S.C.R.
SUPREME COURT REPORTS
109
jurisdiction it certainly has no bearing on the question of finality of appellate judgments which is
sr~ci
fically provided by section 430 of 'the C0de. Again,
the rule of finality embodied in section 369 cannot, in
terms, apply to the orders ma.de by the High Court
in exercise of its revisional jurisdiction, for section
442 of the Code which requires the result of the revision proceedings to be certified to the Court by which
the finding, sentence or order revised was recorded or
passed refers to it as its "decision or order" and not
"judgment". It is significant that section 425 which
requires the result of appeal to be certified to the
lower Court refers to it as its ".iudgment or order".
All these considerations herein alluded to quite clearly
establish that section 369 cannot in any manner control section 439(6). Jn any case, section 369 is "subject to the other provisions of the Code" and I see no
reason why section 439(6) should not be regarded as
one of such other provisions. It cannot be overlooked
that the words "subject to the other provisions of
the Code, etc." were introduced into section 369 at
the same time as sub-section (6) was added to section
439.
As I read the new sub-section, it is a substantive statutory right conferred on the subject and full
effect should be given to it unless there is any insuperable difficulty in the way of doing so. If section
369 were susceptible of as wide a meaning as is read
into it, namely, that it applies to all
judgments of
all Courts, original, appellate or revisional, I would,
in that case, hold that that meaning must be taken
as cut down, by reason of the words "subject to the
other provisions of the Code, etc." by the mandatory
nrovisions of section 439(6). In other words, section
43916) must be read as controlling section 369· rather
than the other way about. Finally, section 369 being
suhiect to the other provisions of the Code must be
read as subject to section 430 and as the finality
enshrined in the latter section does not attach to
cleci~ions or orders· made in revision by reason of
Chr:tpter XXXIT being expressly excepted from its
oneration, the rule of finality embodied in
section
369, even if it be as wide as it is contended to be,
15·-8 SCI/ND182
19.55
UJ.S. ChOJ!f·"
v.
Statd oJ BOmbfly
DasJ.
1955
IJJ S. Chopra
v.
State of.-Bo1.11bay
Dasi.
110
SUPREME COURT REPORTS
[1955]
cannot affect cases provided for in Chapter XXXII.
I now pass on to section 430 which is also relied on
as furnishing a principle of finality which is supposed
to control the operation of section 439(61.
Section
430, in terms, applies to "judgments and orders"
passed by an appellate Court. Jt has no application to "decisions or orders" made by the High Court
in revision;
It has been contended that the exception made in section 430 in respect of cases provided
for in Chapter XXXII only exempts the judgments
or orders of an appellate Court other than a High
Court from the rule of finality embodied in section
430 because they are made revis!lble by the High Court
under section 439(1).
Section 439(1) does not contemplate or permit judgments or orders made by the
.High Court in exercise of its original or appellate
criminal jurisdiction to be rev.ised by the High Court.
As; therefore, the appelate judgments or orders of the
High Court cannot, under section 439(1), be made the
subject-matter of any revision application. such appellate judgments or orders did not fall within the exception made in section 430 and were accordingly left
subject to the rule of finality embodied therein. Two
answers occur to me. If the effect of the new subsection (6), as I have already explained, is to confer a
new right on an accused person notwithstanding
anything contained in section 439(1), that is to say,
if sub-section (6) is read, as I think it should be.
as a >tatutory provision expressly making the judgmer)t ur decision or order of the High Court passed
in exercise of its appellate or revisional jurisdiction
subject. for the purpose of the protection of an
accused person whose appeal or revision had been previously dismissed. to re-examination bv the High
Court only as and .when he is subsequently faced with
an application for enhancement of sentence, then such
judgment, decision or order of the High Court does,
as a result of section 439(6), become the subject-matter
of a case provided for in Chapter XXXII of the Code.
In other words, the scope of Chapter XXXII having been enlarge9 by the addition of sub-section
(6) to section 439, the scope of tlie exception to sec-
2 S.C.R.
SUPREME COURT REPORTS
111
tion 430 must also stand enlarged so as to inclcde
t9s5
within the exception whatev.er, after the amt..ndment
u:1.s. Chopra
of section 439, may come within Chapter XXXII and, Start bf~ombay
therefore, cases now coming within that Ghapter must
Ii -:,
stand free from the rule of finality embodied in secas •
tion 430. The other answer is to be found in two of
the decisions of the Allahabad High Court, namely,
Emperor, v.