# T ilkeshwar Sin:h and others v. Th• Stale of Bihar Venkatarama

- **Citation:** [1955] 2 S.C.R. 1049
- **Court:** Supreme Court of India
- **Decided:** 1953-07-24
- **Case number:** Criminal Appeal No. 75 of 1954
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/t-ilkeshwar-sin-h-and-others-v-th-stale-of-bihar-venkatarama-1232
- **Pages:** 8

## Headnote

2S.C.R. ·
SUPREME COURT REPORTS
1049
section 342
contemplates
an examination
in
court,
and the practice of filing statements is to be deprecated. But thar_ is not a ground for interference,
unless prejudice
is
established.
And it
is nothing unusual for the accused to prefer filing statements mstead of answering questions under section 342, lest
they should suffer by
inadvertent admissions
or by
damaging
statements.
As
no prejudice
has
been
shown, this contention also must be rejected.
In the result, the appeal is dismissed.
JAYARAM VITHOBA AND ANOTHER
ti.
THE STATE OF BOMBAY.
[V1v1AN BosF.. VENKATARAMA AYYAR and CttANDRASEKHARA AIYAR JJ.l
Code of Criminal Procedure (Act V of 1898), s. 423(1)(b) and
(J), s. 439-Powers of Appellate Court-High Court's powers of revision-Conviction by the trial Court but no sentence-High Court CMftrming conviction and awarding sentence-Legality-Bombay Prevention of Gambling Act (Bombay Act IV of 11)87), ss. 4(a), 5.
The first appellant was
prosecut."-1 under s. 5 of the
Bombay
Prevention of Gambling Act (Bombay Act IV of 1887) for being
present in a gaming house for the purposes of gaming and was, in
addition, charged under s. 4( a) of the Act for keeping a gaming house.
The Presidency
Magistrate,
':"ho tried the case, found him guilty
under s. 4(a) and sentenced him to three months' rigorous imprisonment.
He also tound him guilty under s. 5 but awarded no separate sentence under that section.
In revision,
the High Court set
aside the conviction under s. 4(a), but confirmed that under s. 5 and
awarded a sentence of th.-ee months' rigorous imprisonment under
that section. It was contended for the first appellant that the High
Court had no power under s. 423( I) (b) of the Code of Criminal Procedure to impose any sentence under s. 5 of the Act when no such
sentence had been awarded by the Magistrate
and that,
in
any
event, the award of such a sentence amounted to an enhancement
and was, in con~equence, ille,;al, as no notice had been issued therefor, a< rrquired by law.
Held, that though s. 423(l)(b) of the Code of Criminal Procedure w:is not applicable to the case, the High Court had power to
pass ~he sentence under s. 423(I)(d).
The law
does not
envhage a person being convicted for an
1955
T ilkeshwar Sin:h
and others
v.
Th• Stale of Bihar
Venkatarama
Ayyar J.
1955
Dec em/Hr 13,
1955
J•yar11m Vilhoba
and anoth1r
The Slate •f
BrJmbay
1050
SUPREME COURT REPORTS
[1955]
offence without a sentence being imposed therefor, and the award of
:ii. sentence by the High Court was only consequentia) on and inci~
dental to the affirmancc of the conviction, and it was a just and
proper order to be passed under the law, within the meaning of s.
423(l)(d) of the.Code of Criminal Procedure.
·Such a sentence cannot
amount to an enhancement as it was
awarded only for the first time in appeal.
Even if it were to be
regarded as an enhancement, the order of the High Court could not
be held to be bad for want of notice under s. 439(2), as the fim
appellant had an opportunity of showing cause against the conviction and enhancement, and, in any event, no prejudice had resulted
to him by reason of the ab~ence of a formal notice under the section~
Ibrahim v. Emperor (A.LR. 1940 Born. 129), Superintendent and
Remembrancer of Legal Affairs v. Hossein Ali (A.LR. 1938 Cal. 439}
and Pradip Chaudhry v. Emperor
(A.LR. 1946
Pat. 235),
d~
approved.
CRIMINAL
APPELLATE
JURISDICTION :
Criminal
Appeal No. 75 of 1954.
Appeal by Special Leave from the Judgment and
Order dated the 24th July 1953 of the Bombay High
Court i'n Criminal Revision Application
No.
669 of
1953 arising out of the
Judgment and Order dated
the
29th June
1953
of the
Court of Presidency
Magistrate, 9th Court at
Bandra,
Bombay
111
Case
No. 11872/73/P of 1952.
P. K. Chatterjee, for the appellants.
N. S . .J3indra, (P. G. Gokhale, with him) for the
respondent.
1955. December 13.
The Judgment of the Court
was delivered by
VENKATARAMA AYYAI<. J.-The
first
appellant was
at th

## Text

2S.C.R. ·
SUPREME COURT REPORTS
1049
section 342
contemplates
an examination
in
court,
and the practice of filing statements is to be deprecated. But thar_ is not a ground for interference,
unless prejudice
is
established.
And it
is nothing unusual for the accused to prefer filing statements mstead of answering questions under section 342, lest
they should suffer by
inadvertent admissions
or by
damaging
statements.
As
no prejudice
has
been
shown, this contention also must be rejected.
In the result, the appeal is dismissed.
JAYARAM VITHOBA AND ANOTHER
ti.
THE STATE OF BOMBAY.
[V1v1AN BosF.. VENKATARAMA AYYAR and CttANDRASEKHARA AIYAR JJ.l
Code of Criminal Procedure (Act V of 1898), s. 423(1)(b) and
(J), s. 439-Powers of Appellate Court-High Court's powers of revision-Conviction by the trial Court but no sentence-High Court CMftrming conviction and awarding sentence-Legality-Bombay Prevention of Gambling Act (Bombay Act IV of 11)87), ss. 4(a), 5.
The first appellant was
prosecut."-1 under s. 5 of the
Bombay
Prevention of Gambling Act (Bombay Act IV of 1887) for being
present in a gaming house for the purposes of gaming and was, in
addition, charged under s. 4( a) of the Act for keeping a gaming house.
The Presidency
Magistrate,
':"ho tried the case, found him guilty
under s. 4(a) and sentenced him to three months' rigorous imprisonment.
He also tound him guilty under s. 5 but awarded no separate sentence under that section.
In revision,
the High Court set
aside the conviction under s. 4(a), but confirmed that under s. 5 and
awarded a sentence of th.-ee months' rigorous imprisonment under
that section. It was contended for the first appellant that the High
Court had no power under s. 423( I) (b) of the Code of Criminal Procedure to impose any sentence under s. 5 of the Act when no such
sentence had been awarded by the Magistrate
and that,
in
any
event, the award of such a sentence amounted to an enhancement
and was, in con~equence, ille,;al, as no notice had been issued therefor, a< rrquired by law.
Held, that though s. 423(l)(b) of the Code of Criminal Procedure w:is not applicable to the case, the High Court had power to
pass ~he sentence under s. 423(I)(d).
The law
does not
envhage a person being convicted for an
1955
T ilkeshwar Sin:h
and others
v.
Th• Stale of Bihar
Venkatarama
Ayyar J.
1955
Dec em/Hr 13,
1955
J•yar11m Vilhoba
and anoth1r
The Slate •f
BrJmbay
1050
SUPREME COURT REPORTS
[1955]
offence without a sentence being imposed therefor, and the award of
:ii. sentence by the High Court was only consequentia) on and inci~
dental to the affirmancc of the conviction, and it was a just and
proper order to be passed under the law, within the meaning of s.
423(l)(d) of the.Code of Criminal Procedure.
·Such a sentence cannot
amount to an enhancement as it was
awarded only for the first time in appeal.
Even if it were to be
regarded as an enhancement, the order of the High Court could not
be held to be bad for want of notice under s. 439(2), as the fim
appellant had an opportunity of showing cause against the conviction and enhancement, and, in any event, no prejudice had resulted
to him by reason of the ab~ence of a formal notice under the section~
Ibrahim v. Emperor (A.LR. 1940 Born. 129), Superintendent and
Remembrancer of Legal Affairs v. Hossein Ali (A.LR. 1938 Cal. 439}
and Pradip Chaudhry v. Emperor
(A.LR. 1946
Pat. 235),
d~
approved.
CRIMINAL
APPELLATE
JURISDICTION :
Criminal
Appeal No. 75 of 1954.
Appeal by Special Leave from the Judgment and
Order dated the 24th July 1953 of the Bombay High
Court i'n Criminal Revision Application
No.
669 of
1953 arising out of the
Judgment and Order dated
the
29th June
1953
of the
Court of Presidency
Magistrate, 9th Court at
Bandra,
Bombay
111
Case
No. 11872/73/P of 1952.
P. K. Chatterjee, for the appellants.
N. S . .J3indra, (P. G. Gokhale, with him) for the
respondent.
1955. December 13.
The Judgment of the Court
was delivered by
VENKATARAMA AYYAI<. J.-The
first
appellant was
at the relevant date, in possession of room No. 10 in
House No. 334, Bazar Road, Bandra, Bombay.
On
information that this
room
was being
used
as
a
gaming house, Mr.
Bhatt, Sub-Inspector of
Police,
raided it on 19-9-1952, and fc11nd the two appellants
and four others in possession of gaming instruments.
All of them were prosecuted under section 5 of the
Bombay P,·evention of Gambling
Act
(Bombay Act
IV of 1887), hereinafter referred to as the Act, for being present in a gaming house for
the
purposes
of
-.
2S.C.R.
SUPREME COURT REPORTS
1051
gaming, and the
first
appellant
was,
in
addition,
charged under section 4(a) of the Act for keeping a
gaming house.
The presidency
Magistrate who
tried
the case, found the first appellant guilty under section 4(a) of the Act, and sentenced
him
to
three
months' rigorous imprisonment.
He also found him
guilty under section 5 of the Act, but awarded no
separate sentence
under
that
section.
The
second
appellant was found guilty under section 5, and sentenced to three months' rigorous imprisonment.
The
·appellants took the matter in revision
to the High
Court, which set aside the conviction of the first appellant under section 4(a) but confirmed that under section 5, and awarded
a sentence
of
three
months'
rigorous imprisonment under that section.
As regards
the second appellant, both
the
conviction
and
sentence were confirmed.
Against this order, the present
appeal by special leave has been preferred.
Both
the courts below have concurrently found
that the appellants were present in a gaming house
for the purpose of gaming, and have thereby committed an offence punishable und·cr section 5 of
the
Act, and that finding is not under challenge before
us. The only contention that has been raised before
us-and it arises
only as regards the first appellantis that as the High Court had set aside his conviction
under section 4(a) of the Act, it should have set aside
the sentence passed on him under that section, and
that it had no power under the Code of Criminal Procedure, to impose a sentence under section 5, when
none such had been
passed
by the
Magistrate.
This
contention is
based
on the terms of section
423.
Under that section, when there is an appeal against
a conviction, the court has the power under subclause ( 1) (b) either ( 1) to reverse the finding and sentence, and acquit or discharge the accused, or order
his retrial, or (2)
to alter the finding but maintain
the sentence, or (3) to reduce the sentence with or
without altering the finding,
or ( 4)
to alter the
sentence with or without either reducing the sentence or
altering the
finding,
but, subject to section 106(3),
not so as
to enhance the same. It is urged that the
12--85 s. c. India/59.
1955
Jayaram Vitliob~
and another
v.
The State q(
Bomb't•
Venkatarama
Ayyar J.
1955
]aJ•aram Vitholta
nnd anolher
v.
T!it State of
Bomba7
V tnkatarama
Ay.Jar ].
1052
SUPREME COURT REPORTS
[1955)
present case does not 'fall within any of the four
categories
mentioned
above
as
the conviction under
section 5 has been affirmed, and no question of reduction or alteration of sentence arises, as none had been
impo;cd under that section
by the Magistrate, and
that accordingly the order of the High Court could
not be
justified under any of the p'rovisions of the
Code. It is further contended that the award of sen·
tence under section 5 amounted in the above circumstances
to an enl1ance1nent,
and was,
in consequence,
illegal,
as
no notice had been issued therefor, as
required by law.
In support of this contention, the decision
111
Ibrahim v. Em perm (1 )
is relied on. In that case, as
in the present, the accused was convicted both under
section 4(a) and section 5 of the Act, but a sentence
was passed under section 4(a) and none under section
5.
On appeal,
the
learned Judges set aside the conviction
under section 4 (a), and on the question of
sentence, observed that the Magistrate was wrong in
not having imposed a separate sentence under section
5, and continued :
"He ought to have
imposed
a sentence under
each section ; but as he has not imposed a sentence
under section 5, we cannot impose one ourselves, for
that would be enhancing the sentence".
These
observations
undoubtedly
support the first
appellant.
A different view, however, was taken in two other
decisions, which may now be noticed. In Superintendent and
Remembrancer of Legal Affairs v. Hossein
Ali(
2 ), the accused had been convicted by the Magistrate both under section 363 and section 498 of the
Indian Penal Code, and sentenced to imprisonment
under section 363, no separate sentence having been
awarded under
section 498. On appeal, the Sessions
Judge set aside the conviction under section 363, but
held the accused guilty under section 498. On a reference as to whether the Sessions Judge could pass
any sentence under section 498, it was held by the
High Court that he could, under section 423(1)(b) of
(I) A.l.R. 1940 Born. 129.
(2) A.I.R. 1938 Cal. 439
2S.C.R.
SUPREME COURT REPORTS
1053
the Code of Criminal Procedure, as there was an
alteration of the
conv1ct1on
under sections
363 and
498 to one under section 498. This view proceeds, in
our opinion, on a misconception of the
true meaning
of the words "alter the
finding"
in section 423(1) (b)
of the Code of Criminal Procedure.
When a statute
enacts provisions
creating
specific
offences,
in
law
these
offences
constitute
distinct matters
with
distinct incidents. Under section
233
of the
Code of
Criminal
Procedure,
they
have
to
be
separately
charged, and under section 367, the judgment has to
specify the offence of which and the law under which
the accused is convicted.
When there is a conviction
for more offenc'es than one, there are distinct findings in respect of each of them, and when section 423
( 1 )(b) speaks of a finding being reversed or altered by
the court of appeal, it has reference to the finding in
respect of each of the offences. When, therefore, the
High Court set aside the conviction under section 4
(a) and affirmed that under section 5, there are two
distinct findings, one of reversal and another of affirmance, and there is no question of alteration.
The decision in Superintendent and Remembrancer of
Legal Affairs v. H ossein Ali (1) was followed in Pradip
Chaudhry v. Emperor( 2). There, the Sessions
Judge
convicted the
accused under sections 324
and 148 of
the · Indian Penal Code and sentenced them to imprisonment under section 324, but no sentence was
imposed on them
under
section 148.
On appeal, the
High Court set aside the
conviction under section
324,
and confirmed that under section
148. Dealing
with the contention of the accused that the Court
had no power under section 423(1)(b) of the Code of
Criminal Procedure to award a sentence under section
148,
the
learned
Judges
observed
that
they
had
"ample power tp transpose the sentence, so long as
the transposition does not amount to enhancement".
We are unable to support the reasoning in this decision
either. · There is nothing about transposition of
sentence under
section
423(1)(b). ,It
only
provides
for altering the finding and maintaining the sentence,
(I) A.I.R. 1938 Cal. 439.
(2) A.I.R. 1946 Patna 235.
1955
Jayaram Vithoba
tllld another
v.
The Stall of
Bombay
Venkatarama
Ayyar ].
1955
ja;v aram ViJ/1oba
and a11other
v.
Thi Stat~ of
Bomba~"
Venkatarama
Ayya< ].
1054
SUPREME COURT REPORTS
[1955)
and that can apply only to cases where the finding of
guilt under one section is altered to a finding of guilt
under another. The section makes a clear distinction
between a reversal of a finding and its alteration, and
provides that when there is
a reversal, the order to
be passed is one of acquittal, discharge or retrial,
whereas when there is an alteration, the order to be
passed is one of maintaining, reducing or altering the
sentence.
But here,
the
order passed
by the High
Court is not one of alteration of any finding. It is,
as already stated, a reversal
of the finding under 5'Ction 4(a) and a confirmation of the
conviction under
section 5. VI e are therefore of opinion that on the
language of the section, the imposition of a sentence
under section 5 by the High Court cannot be justified.
The question still remains whether apart from section 423(1)(b), the High Court lras the power to impose the sentence which it has. When a person is
tried for an offence and convicted, it is the duty of
the court to impose on him such sentence, as is prescribed therefor. The law does not envisage a person
being convicted for an offence
without a sentence being imposed
therefor.
When
the
trial
Magistrate
convicted the first appellant under section 5, it was
plainly his duty to have imposed a sentence. Having
imposed a sentence under section 4(a), he obviously
considered that there
was. no need
to impose a like
sentence under section 5 and to direct that both the
sentences should
run concurrently.
But, in strictness,
such an order was the proper one to be passed. The
appellants then took the matter- in revisions to the
High Court, and
contended
that their
conviction
under section 5 was bad. The High Court went into
the question on the merits, and found them guilty
under that section. It was the duty of the High Court
to impose a sentence
under section 5,
and that is
precisely what it has
done. The power to pass· a
sentence under those circumstances
is
derived from
the law which enacts that on conv1ct1on
a sentence
shall be imposed . on the accused, and that is a power
which can and ought to be exercised by all the courts
which,
having
jurisdiction
to
decide
whether
the
2S.C.R.
SUPREME COURT REPORTS
1055
accused is guilty or not, find that he is. We are of
op1mon
that this power is preserved to the appellate
court
expressly
by
section 423(1)(d),
which enacts
that it can "make any
amendment or any
consequential or incidental order that may be just or pmper".
When a conviction is
affirmed
in appeal
but
no sentence had been awarded
by
the trial Magistrate, the award of a sentence is consequential on and
incidental to the affirmance of the conviction,
and
it
is a just and proper order to be passed under the law.
We are unable to agree with the view
expressed in
Ibrahim v. Emperor(1) that such an order would be an
enhancement of the
sentence.
Before a sentence
can
be said to be enhanced, there must be one which
could
be enhanced
and
when no sentence
was imposed on a conviction by
the
trial
Magistrate and
one is fot the first time awarded in appeal, it cannot
correctly be
said to be an enhancement. We
are accordingly of opinion
that it was
within
the competence of the High Court to have
passed the
sentence
which it had.
There is another ground on which the order of the
lower court can be
sustained. Against the conviction
of the
appellants by
the Presidency
Magistrate,
no
appeal lay, and accordingly the
appellants
preferred
a revision to the High Court. Under section 439 ( 1)
of the Code of Criminal Procedure, the High Court in
hearing a revision
can ex.er.cise the powers of a court
of appeal under
section 423,
and may
enhance
the
sentc:nce.
Under section
439(2), an order of enhancement could not be
passed, unless the accused had an
opportunity of being heard in his defence, and under
section 439(6), the accused is also entitled, when proceedings are taken under section 439(2), to show cause
against his conviction. The substance of the matter is
that when proceedings are taken against the accused
for enhancement of sentence under section 439 (2), he
has a right to be heard both on the question of the
propriety of the conviction and of the sentertce to be
imposed on him if he is
convicted. In the present
case,
the
first appellant had an opportunity of
pre-
(!) A.I.R. 1940 Born. 129.
1955
Jayaram Vithoba
and another
v.
The State of
Bombay
V er1katararna
Ayyar J.
\955
varam Vithoba
nnd a1101h1r
v.
Thi State of
Bombay
Venkatorama
A)!l'ar ].
1056
SUPREME COURT REPORTS
[1955]
seating his case in respect of both these matters, and,
in fact,
he availed himself of the same. He himself
raised in his revision the question of his guilt under
section 5,
and the High Court on a consideration of
all the evidence affirmed his conviction. On the question of sentence, section 5 enacts that when a person
is fonnd guilty under that section,
the
punishment
shall not be
less
than three months' imprisonment
and Rs. 200 fine, if he had been convicted for the
same offence previously. The first
appellant had a
previous conviction,
and
the
sentence
of
imprisonment is the minimum which could be passed
against
him under section 5. With reference to this aspect
of the matter, the High Court observes :
"In view of the fact that the first accused admits
one previous conviction under section 5 of the Act,
the sentence
of three
months'
rigorous imprisonment
passed upon him by
the learned
Presidency Magistrate is justified".
Now,
the question is whether,
in the
circumstances,
the order of the High Court could be held to be bad
for want of notice under section 439(2). The law
does
not
prescribe
that any
particular formalities
should be complied with, before action is taken under
that section.
It only provides
that the accused should
have an opportunity
or
showing
cause
against
the
conviction and enhancement, and as the first appellant was heard on both these questions, the requirements of the section were satisfied. The order of the
High Court could accordingly be _maintained under
section 439,
even if it were to be regarded as an
enhancement
of the sentence. In any
event, no prejudice has resulted to the first appellant by reason of
the absence of a formal notice under section 439(2).
In the result, the appeal is dismissed.