# JAGAT BAHADUR SINGH v. STATE 01'' MADHYA l'RADESH

- **Citation:** [1966] 2 S.C.R. 822
- **Court:** Supreme Court of India
- **Decided:** 1965-11-30
- **Case number:** Criminal Appeal No. 156 of 1963
- **Bench:** A. K. Sarkar, J. R. Mudholkar, R. S. Bachawat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jagat-bahadur-singh-v-state-01-madhya-l-radesh-3756
- **Pages:** 6

## Headnote

Code of -Criminal Procedure (Act 5 of 1898), ss. 31(1), 32 and
423(1) (a)-Maximum sentence appellate court can impose.
The appellant was tried by the
Magistrate of the First Class for
offences under ss. 170, 342 and 392 of the Indian Penal Code and was
acquitted.
On appeal, the High Court set aside the acquittal, and in
respect of the offence under s. 392, sentenced him to 4 years R.I.
In his appeal to this Court,, the appellant contended that if the Mallis·
trate had convicted him he could not have passed a sentence exceeding
2 years for the offence under s. 392 by virtue of s. 32 of the Criminal
Procedure Code, and therefore, the High Court was incompetent to pass
the sentence of 4 years.
HELD : As an appellate court is not competent to impose a punishment higher, than the maximum that could have been imposed by the
trial court, the High Court was in error in sentencing the appellant to
undergo imprisonment in respect of the offence under s. 392 for a period
exceeding 2 years. [826 G; 827 CJ
An appellate Court is a "court of error'', that is, a court established for
correcting an error. If, while purporting to correct an error, the appel~
late C01'Tt were to do something which was beyond the competence of
the trial court. it could not be said to be correcting an error of the trial
court. Therefore, 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. [826 H; 827 A, Bl
Case Jaw referred to.

## Text

822
JAGAT BAHADUR SINGH;
v.
STATE 01'' MADHYA l'RADESH
November 30, 1965
[A. K. SARKAR, J. R. MUDHOLKAR AND R. S. BACHAWAT, JJ.J
Code of -Criminal Procedure (Act 5 of 1898), ss. 31(1), 32 and
423(1) (a)-Maximum sentence appellate court can impose.
The appellant was tried by the
Magistrate of the First Class for
offences under ss. 170, 342 and 392 of the Indian Penal Code and was
acquitted.
On appeal, the High Court set aside the acquittal, and in
respect of the offence under s. 392, sentenced him to 4 years R.I.
In his appeal to this Court,, the appellant contended that if the Mallis·
trate had convicted him he could not have passed a sentence exceeding
2 years for the offence under s. 392 by virtue of s. 32 of the Criminal
Procedure Code, and therefore, the High Court was incompetent to pass
the sentence of 4 years.
HELD : As an appellate court is not competent to impose a punishment higher, than the maximum that could have been imposed by the
trial court, the High Court was in error in sentencing the appellant to
undergo imprisonment in respect of the offence under s. 392 for a period
exceeding 2 years. [826 G; 827 CJ
An appellate Court is a "court of error'', that is, a court established for
correcting an error. If, while purporting to correct an error, the appel~
late C01'Tt were to do something which was beyond the competence of
the trial court. it could not be said to be correcting an error of the trial
court. Therefore, 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. [826 H; 827 A, Bl
Case Jaw referred to.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
156 of 1963.
Appeal by special leave from the judgment and order dated
February 8, 1963 of the Madhya Pradesh High Court in Criminal
Appeal No. 121 of 1962.
E. C. Agarwala for P. C. Aganvala, for the appellant.
M. N. Shroff for I. N. Shroff, for the respondent.
The Judgment of ~he Court was delivered by
Mudholkar, J.
The appellant, a police constable, was tried
for offences under ss. 170, 342 and 392, Indian Penal Code
but was acquitted by the trying Magistrate of all these offences.
The High Court to which an appeal was preferred by the State
Govermnent set aside the acquittal and convicted the appellant of
each of these offences.
It sentenced him to rigorous imprisonA
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JAGAT BAHADUR v. M. P. STATE (Mudholkar, !.)
823
A
ment for a period of one year in respect of the offence under
s. 170 and to a period of six months for an offence under s. 342.
In respect of the offence under s. 392 the High Court sentenced
him to andergo rigorous imprisonment for a period of four years
and further ordered that all the sentences should run concurrently.
B
Briefly stated the prosecution case was that the appellant who
was posted at Rewa took leave for 15 days from August 7, 1958
with a view to go to his village Hati in District Satna but instead
went to Jabalpur wearing the uniform of a police head constable.
There he met the complainant Ram Kumar, P.W. 1 at the Omti
Bridge near the Pan shop of one Saligram, P.W. 2. He engaged
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him in conversation and learnt from him that the latter was from
village Beldara, police station Maihar. He told Ram Kumar that
a theft had been reported from that area and that he had come
to Jabalpur to investigate into it and that Ram Kumar answered
the particulars of the man wanted in connection with the theft. It
may be mentioned that Ram Kumar was wearing a gold 'mohar', •
D threaded in a piece of string, round his neck. Questioned about
it by the appellant he told him that he had received it as a present
from his father-in-law.
The appellant took Ram Kumar along
with him from place to place and at one place he tried to relieve
Ram Kumar of the gold mohar saying that it was a stolen l;lrticle.
Ram Kumar resisted and protested and so also did one Phoolchand
E who was there.
The appellant then got into a rickshaw along
with Ram Kumar on the pretext of taking him to the police
station.
Instead of stopping at the police station he asked the
rickshaw to proceed to Katni road and dismissed the rickshaw
puller after paying his fare.
He then gave a beating to Ram
F Kumar and snatched the gold mohar from his neck. While they
were standing on the road to Katni a motor truck happened to
pass that way.
The appellant stopped it and got into it along
with Ram Kumar and proceeded towards Katni. After reaching
the place the appellant sent off Ram Kumar to fetch a cup of tea
for him.
While Ram Kumar was away the appellant got into a
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goods train which happened to be leaving Katni railway station
in the direction of Satna at that time and travelled in the brake
van.
Ram Kumar, finding that the appellant had escaped, lodged
a report with the police.
Eventually the appellant was apprehended and challaned.
He denied the offence and said that he
was falsely implicated and also said that it was a case of mistaken
H identity.
The main question was regarding the appellant's identity.
There is voluminous evidence on the point which has been disLSSup. Cf/66-6
824
SUPREME
COURT
REPORTS
[1966] 2 S.C.R.
cussed fully by the High Court.
On the basis of that evidence the
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High Court came to the conclusion that the person who
had
snatched away the gold mohar from Ram Kumar was no other
than the appellant.
Mr. E. C. Agarwala who appears for the appellant tried to
urge before us that the High Court was in error in holding that the
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person who committed the various offences was the appellant.
This Court does not ordinarily interfere with a finding of the High
Court based on appreciation of evidence, unless there are strong
reasons for doing so.
Mr. Agarwala could point out no other
reason except this that the High Court had taken a view of evidence different from that of the trying Magistrate and set aside the c
appellant's acquittal and that therefore this Court should appraise
the evidence.
That of course is no ground for discarding the
finding of the High Court.
The High Court has given good
reasons in its judgment for accepting the prosecution evidence for
. coming to the conclusion that the identity of the appellant was
established.
It has also given good reasons for not accepting the
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defence evidence.
In these circumstances we did not permit
learned counsel to take us through the evidence adduced in the
case.
Thy only other question urged by learned counsel is regarding
sentence.
He points out that the appellant was tried by a Magistrate of the First Class and that under s. 32 of the Code of Criminal Procedure the maximum sentence which such a Magistrate is
entitled to pass is imprisonment for a term not exceeding two
years and a fine not exceeding Rs. 2,000/-.
There is nothing to
show that the learned Magistrate was invested with powers under
s. 30 of the Code by virtue of which he could, under s. 34, pass a
sentence of imprisonment up to the limit of seven years. If the
learned Magistrate, instead of acquitting the appellant, had convicted him, he could, therefore, not have passed a sentence of
imprisonment in respect of the offence under s. 392 for a term
exceeding two years and that, therefore, the High Court was incompetent to pass the sentence of imprisonment of four years.
Mr. Shroff, however, contended that even though that was so
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the High Court having held the appellant guilty of the offence
under s. 3 92 is as competent to pass any sentence in respect of
that offence as is permissible under the Indian Penal Code.
In
support of the contention he relied on cl. (a) of s. 423 ( 1) of the
Code of Criminal Procedure.
Under this clause, after
setting H
aside the acquittal of a person, the appe11ate court can "pass
sentence on him according to law." It is true that s. 31 (1) also
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JAGAT BAHADUR v. M. P. STATE (Mudholkar, /.)
825
empowers the High Court to pass any sentence, authorised by law.
But the question is whether these provisions enable the High Court
to pass a sentence which the Court from whose decision an appeal
has been preferred before it was not authorised to pass.
There are several cases of the High Courts in which this question has been considered.
One of them is Sitaram v. Emperor(')
where the question has been elaborately discussed.
Stanyon
A.J.C. who decided the case has said thus :
''The Magistrate who tried the case had power under section
32 of the Code of Criminal Procedure, to pass a sentence of imprisonment for a term not exceeding six months, and fine not
exceeding two hundred rupees.
By section 423 of the same Code,
the District Magistrate, sitting as an Appellate Court on an appeal
from the conviction of the applicants, was empowered, on maintaining the conviction of each applicant, to alter the nature of the
sentence, subject only to the proviso that he did not enhance the
same. .The alteration of a sentence of imprisonment for four
months, into a sentence of fine in the sum of Rs. 300, or in default
imprisonment for four months, was clearly no enhancement, but
a reduction in severity of the sentence.
Section 402 of the Code
follows human sentiment and commonsense in regarding the
substitution of fine for imprisonment as a merciful commutation
of punishment.
Therefore, the sentences ordered by the District
Magistrate wen:~ all within the letter of the rule set out in section
423 aforesaid.
Section 32 contains no word which makes it applicable to any Court of Appeal or Revision : nor is there any restricting proviso to be found in section 423 or any other section
dealing with appellate jurisdiction, such as we read in section 439
sub-section (3). Nevertheless, it is a rule underlying the whole
fabric of appellate jurisdiction that the power of an Appellate
Court is measured by the power of the Court from whose judgment or order the appeal before it has been made. . . . . . . . . . It
is a fμndamental principle that every Court of Appeal exists for
the purpose, where necessary, of doing, or causing to be done,
that which each court subordinate to its appellate jurisdiction
should have, but has not, done, or caused to be done, and nothing
further.
Therefore, the jurisdiction in appeal is necessarily
limited in each case to the same extent as the jurisdiction from
which that particular case comes. It is a proposition which cannot he disputed that all powers conferred upon an Appellate
Court, as such, must be interpreted as subject to the general rule
above stateJ.
In a case reported at 2 Weir 487, the Madras.
(!) 7 Nag. L.R. 109 : 11 T.C. 788.
826
SUPREME
COURT
REPORTS
[1966] 2 S.C.R.
High Court held that an Appellate Court cannot pass, on appeal,
A
a sentence which the origiaal Magistrate was not competent by
law to pass.
Section 106, sub-section 3 of the Criminal Procedure Code, 1898, appears to give an Appel!ate Court power to
make an order under that section in any appeal in which an
accused may have been convicted of rioting, assault,
or other
offence referred to therein. If such a person were acquitted by
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a District Magistrate, but convicted on appeal by the High Court,
there can be no doubt that the Appellate Court, as such, could
make an order under this sub-section.
Its power to make the
order would not be confined to cases where conviction had taken
place before the Magistrate.
But it has been held-and, in my
opinion, rightly held-that the Appellate Court, as such, is not
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competent to make an order under section 106 if the Magistrate,
from whose decision the appeal has come before it, could not
have made it.
This dictum was laid down in Mahmudi Sheikh
v. Aji Sheikh(') Muthiah v. Emperor('); and Paramasiva Pillai
v. Emperor('). In the second of the above cases the learned
Judges remarked,-
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'We think that the power given to an Appellate
Court to make an order under this section is not an unlimited power to make such an order in any circumstances, but is to be taken as giving the Appellate Court
power to do only that which the lower Court could and
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·should have done.'
I do not see why 1tny other rule of construction should be
applied to the power given by section 423 to alter the nature of
a sentence."
We have seen the three deeisions to which the learned Judge has
made reference and they undoubtedly support his conclusi9n.
This decision was fo11owed in Emperor v. Abasali Yu.mfalli(')
and also in Mehi Singh v. Mangal Khandu('); Emperor v.
Muhammad Yakub Ali("); and Maung E Maung v. The King(7).
In in re Tirumal Raju ( 8) it has been held that an appellate court
is not competent to impose a punishment higher than the maximum
that could have been imposed by the trial court. It seems to us
that these cases lay down the correct law.
An appeal court is
after all "a court of error'', that is, a court established for correcting an error.
If, while purporting to correct an error, the court
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(1).I.L.R-.- Zl Cal. 622.
(3) l.L.R. 30 Mad. 48.
(5) I.L.R. 39 Cal. \57.
(2) l.L.R. 29 Mad. 190.
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(4) A.LR. 1935 Nag. 139.
(6) LL.R. 45 All. 594.
{1) A.I.R. 1940 Rangoon 118.
(8) A.LR. 1947 Mad. 368.
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JAGAT BAHADUR v. M. P. STATE (Mudholkar, J.)
827
A were to do something which was beyond the competence of the
trying court, how could it be said to be correcting an error of the
trying court? No case has been cited before us in which it has
been held that the High Court, after setting aside an acquittal,
c;in pass a sentence beyond the competence of the trying court.
Therefore, both on principle and authority it is clear that the
B 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 High Court was thus in error in
sentencing the appellant to undergo imprisonment in respect of
the offence under s. 392 for a period exceeding two years.
Ac
cordingly we allow the appeal partially and reduce the sentence
C of imprisonment in respect of the offence under s. 392 from
rigorous imprisonment of four years to a period of two years.
Subject to this modification we dismiss the appeal.
Appeal allowed in part.
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