1. This is an application for leave, to appeal to the Supreme Court on the ground that the case involves a substantial question of law.
2. The petitioner was charged, before the learned Presidency Magistrate, 9th Court, Eandra, with having committed offences under Sections 4(a) and 5 of Bombay Act 4 of 1887. The learned trial Magistrate convicted the petitioner of both the said offences. For the offence Under Section 4(a) he sentenced the; petitioner to three months' rigorous imprisonment and he added that as the petitioner had been convicted and sentenced under Section 4(a), he did not propose to pass a separate sentence or him Under Section 5 of the said Act.
Against this order of conviction and sentence the petitioner preferred a revision application to this Court. Shah J. who heard this revision application set aside the conviction recorded against the petitioner under Section 4(a) but maintained his conviction under Section 5, and he imposed a sentence of three months in respect of the offence under Section 5. It is this order which Mr. Dalai seeks to challenge by preferring an appeal to the Supreme Court.
3. Mr. Dalai says that in sentencing the petitioner for the offence under Section 5 Shah J. acted without Jurisdiction because the imposition of the said sentence in law amounts to an enhancement of sentence and the procedure prescribed by Section 439, Criminal P. C. has not been followed in the present case. Mr. Dalai has relied upon a decision of this Court in -- 'Ibrahim Haji v. Emperor' AIR 1940 Bom 129(A). The facts with which Beaumont C. J. and Sen J. were dealing in this case were substantially similar to the facts before us. The accused had been convicted both Under Sections 4 (a) and 5. A sentence of fine of Rs. 600 had been imposed against the accused under Section 4(a) and no separate sentence had been passed under Section 5. In appeal the conviction under Section 4(a) was set aside but that under Section 5 was confirmed, when the question arose as to the sentence to be imposed on the accused under Section 5, Beaumont O. J. who delivered the judgment of the bench observed that they could not impose a sentence under Section 5 themselves for 'that would be enhancing the sentence'.
The learned Chief Justice remarked that the Magistrate was no doubt wrong in not imposing a. separate sentence for the offence under Section 5. But he was disposed to take the view that since the learned Magistrate had not imposed a sentence under Section 5 and if the Court of appeal were to impose a sentence, that would in substance amount to the enhancement of sentence. He no doubt added that it was open to the Court of appeal to issue a notice for enhancement and then proceed to impose an adequate sentence for the offence under Section 5. But on the facts of that particular case, the Court of appeal did not feel like adopting that course. Mr. Dalai naturally lays strong emphasis on this judgment and contends that Shah J. should not have imposed a separate sentence for the offence under Section 5 when no such sentence had been imposed upon the petitioner by the learned Magistrate himself.
4. Before dealing with this contention we would like to refer to the fact that in the present case the petitioner was heard by Shah J. in support of his plea that the order of conviction passed against him both under Sections 4 (a) and 5 was not justified and in that sense he really challenged the propriety of the order of conviction itself. Be-sides Shah J. heard this matter in his revisional jurisdiction and there is no doubt that as a revisional Court he was competent even to enhance the sentence, provided of course, the accused had been given the required notice in that behalf.
Substantially what the petitioner would have been entitled to do if a notice of enhancement had been issued against him, he did while he argued his application before Shah J. And St would be noticed that he succeeded in regard to the major offence Under Section 4(a). Shah J. held that the order of conviction passed against the petitioner for the offence Under Section 4(a) was wrong and he set aside the said conviction. Therefore, it may be permissible to contend, as the learned Assistant Government Pleader has done before us, that the point raised by Mr. Dalai is more technical than substantial in the present case. The safeguard afforded to the accused by Section 439, Criminal P. C. was in effect available to and has in fact been availed of by the petitioner in the present case, since he had been fully heard on the merits of the order of conviction recorded by the learned Magistrate both Under Section 4(a) and Section 5 of the Act.
5. Now, as regards the merits of the point raised by Mr. Dalai, it would be convenient to consider the provisions of Section 423, Criminal P. C. in the first instance. This section deals with the power of the appellate Court in disposing of a criminal appeal. Under the provisions of Sub-section (1) (b) of Section 423 it is open to the Court of appeal in dealing with an appeal from conviction to alter the finding while maintaining the sentence passed upon the appellant.
In the present case if the petitioner had been convicted by the learned Magistrate of the offence Under Section 4(a) only and an appeal had been preferred by him, it would have been open to the appellate Court to alter the finding from Section 4 (a) into one Under Section 5 of the said Act. If the Court of appeal was satisfied that on the evidence no case had been proved Under Section 4(a) but a case under Section 5 had been clearly established, it cannot be disputed that the Court of appeal could have altered the conviction and maintained the sentence; if the ends of justice so require, the Court of appeal might as well have reduced the sentence passed upon the accused by the learned trial Magistrate. If that be so it seems somewhat difficult to appreciate why the Court of appeal should not be competent to make a similar order if the accused is convicted of the offences both under Sections 4(a) and 5 and no sentence has been passed upon him Under Section 5.
All that the Court of appeal purports to do in such a case, if it sets aside the conviction Under Section 4(a) and confirms the conviction Under Section 5, in substance is that it alters the conviction from one offence to the other. In other words by adopting this course, the Court of appeal expresses its concurrence with the trial Magistrate's order of conviction Under Section 5 and it makes the said order effective and operative by maintaining the sentence imposed by the trial Magistrate Under Section 4(a). In our opinion, therefore, the provisions of Section 423(1)(b), do confer Jurisdiction upon the Court of appeal to deal with a case like the present one.
6. The judgment of Beaumont C. J. on which Mr. Dalai relies proceeds on the assumption that if an accused person is charged under Sections 4 (a) and 5, Prevention of Gambling Act, it is obligatory on the learned Magistrate to pass separate sentences for the two offences if the accused is convicted of the said offences. That is what Beaumont C. J. expressly says when he observed that the learned Magistrate ought to have imposed a sentence under each section. Recently a similar point arose before a Division Bench of this Court consisting of Dixit J. and my learned brother Chainani in the case of -- 'Pujamal v. State of Bombay', : AIR1951Bom244 (B). In this case the learned Judges were dealing with an accused who had been charged with the commission of offences punishable under Sections 65(b), 65(f) and 66(b) Bombay Prohibition Act of 1949. The question which arose for decision was whether it was necessary in such a case to impose three separate sentences if the accused happened to be convicted of all the three offences with which he was charged.
My learned brother Chainani who delivered the principal judgment of the bench considered the relevant provisions of the Code and the judicial decisions bearing on this point; and in the end he expressed his agreement with the principle underlying the said decisions and held that although separate sentences can legally be passed at the same trial On a person charged with offences punishable under Sections 65(b), 65(f) and 66(b), Bombay Prohibition Act subject of course to the limit imposed by Section 71, Penal Code, ordinarily one sentence alone should be passed for the offence punishable Under Section 65(b) and no separate sentences should be passed for the offences under Sections 65 (f) and 66 (b).
It may be pertinent to point out that amongst the decisions which my learned brother considered were three reported judgments of this Court: -- 'Queen-Empress v. Mahomed', Rat Tin Cr C 597 (C); -- 'Reg. v. Dod Basaya', 11 Bom HCB 13 (D); & --'Emperor v. Lavji Mandan', AIR 1939 Bom 452 (E). Therefore, with very great respect the consensus of judicial opinion appears to be inconsistent with the assumption made by Beaumont C. J. when he observed that the learned Magistrate was no doubt wrong in not imposing a separate sentence upon the accused Under Section 5.
It is perfectly true that the observations made by Beaumont C. J. are entitled to great respect, but having regard to the contrary opinion which has been expressed in several decisions of this Court, we would respectfully prefer to adopt the view taken by my learned brother in the case which I have just mentioned. It may be pointed out that the question docs not appear to have been fully argued before Beaumont C. J. and Sen J. and earlier decisions of this Court & other High Courts were not cited; besides, on the facts before them, the learned Judges were apparently not disposed to sentence the accused, otherwise, even on the view they took, they could have issued notice for enhancement and dealt with it in due course in their revisional jurisdiction.
7. On principle we are unable to sec how Shah J. can be said to have enhanced the sentence against the petitioner when all that he did was to alter the conviction from Section 4 to Section 5 and maintained the sentence which was already passed upon the petitioner. Mr. Dalal contends that, in dealing with this question, we should not forget that there is no material available to us on the question as to what, the learned Magistrate would have done if he had decided to impose a sentence upon the petitioner for the offence Under Section 5. That no doubt is true. But that would be so in all cases falling Under Section 423(1)(b), Criminal P. C.
When the Court of appeal acts under the powers conferred under the said section, it has always to consider the adequacy of sentence which should be imposed upon the accused for the offence of which he is found guilty in appeal. The limit upon the sentence is imposed by the sentence which the trial Magistrate may have passed against the accused under his order of conviction; but even so, the Court of appeal is not bound to maintain the said sentence; it can reduce the said sentence if the facts before the Court of appeal justified the adoption of such a course.
8. Mr. Dalai has fairly conceded that apart from the decision in -- 'Ibrahim Haji v. Emperor, (A)', he has not found any other reported decision which has taken the same view. On the contrary, he has himself invited our attention to two other decisions which have taken a contrary view.
In -- 'Supdt. & Remr. of Legal Affairs v. Hossein All : AIR1938Cal439 , Ghosh and Bartley JJ. had occasion to deal with a similar point. The two accused persons were tried by the Magistrate and convicted by him under Sections 363 and 498, Penal Code. The learned Magistrate sentenced them to rigorous imprisonment for one year and six months Under Section 363 while he awarded no separate sentence Under Section 498. In appeal the learned Sessions Judge came to the conclusion that the offence Under Section 363 was not proved against the accused. So he set aside the order of conviction passed against the accused Under Section 363 but he confirmed the order of conviction Under Section 498. Having confirmed the said conviction he felt that he had no authority to pass an order of sentence. That is how the matter came before the Calcutta High Court. The learned Judges took the view that the Sessions Judge had jurisdiction to pass an appropriate sentence Under Section 498 subject to the limit of one year and six months which the Magistrate had imposed. In support of this conclusion the learned Judges referred to the provisions of Section 423(1)(b) and held that, in substance, if the Sessions Judge imposed a sentence for the offence Under Section 498, it would amount to the alteration of the order of conviction subject to maintaining the order of sentence passed against the accused..
The same view has been taken by Meredith and Imam JJ. in -- Tradip Choudhry v. Emperor' : AIR1946Pat235 (G). We would like to add that the point of law which has been raised before us by Mr. Dalai was not taken before Shah J. when the matter was argued before him in revision.
9. Similarly, another point which Mr. Dalai attempted to take before us, namely, that the petitioner has not had a fair trial in the Court of the learned Magistrate was not raised before Shah J. We have not allowed Mr. Dalai to raise this latter point in the present application, because its decision would depend upon questions of facts which were not placed before Shah J. and ordinarily such new points cannot be permitted to be raised in applications for leave to appeal to the Supreme Court.
10. The result is the application fails and the rule is discharged.
11. Application dismissed.