1. This proceeding which has been reported for orders gives rise to a short question of law relating to procedure, viz., whether or not tender of a notice under Section 439 of the Criminal Procedure Code, to a convict-accused who is serving his sentence in Jail, if refused by him, amounts to valid and sufficient service.
2. In order to appreciate the scope of the question, it is necessary to state briefly the material facts which save rise to the same : A-1 and A-2 in Sessions Case No. 9 of 1971 have been convicted under Section 302 IPC and sentenced to imprisonment for life by the Sessions Court. Visakhapatnam and have been serving their sentences in the Central Jail, Visakhapatnam and Central Jail. Rajahmundrv respectively. Criminal Revision Case No. 654/71 filed by the Public Prosecutor representing the State under Sections 435 and 439 Cr.P.C. against A-1 and A-2 for enhancement of the sentence of imprisonment for life passed against them, to death has been admitted by this Court on December 8, 1971. The formal process of service of notices to convicts serving their sentences being through the respective Jail Superintendent, notices informing them that this Court, in exercise of its revisional powers, will proceed to deal with their case on March 28, 1972, were sent to the respondents through the respective jail Superintendents on February 21, 1972. The notice to the 2nd respondent (A-2) has been returned after service on him. However, the notice to the 1st respondent (A-1) was returned unserved with the endorsement of the Superintendent. Central Jail, Visakhapatnam that the accused-respondent was unwilling to have the notice served on him. Hence the matter is posted by the office for orders.
3. Before proceeding to deal with question, it is apposite to refer to the revisional powers of this Court. This Court is competent under Section 435 of the Code of Criminal Procedure (hereinafter referred to as the Code) either suo motu or, on the application of an approved party, to call for and examine the record of any proceeding before any criminal Court within its jurisdiction for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order passed. The Power to pass an appropriate order after calling for the record of any proceeding of a subordinate court is invested in this Court under Section 439 whereunder the sentence awarded by the Court below can, in appropriate cases, be enhanced in exercise of its revisional jurisdiction. Sub-section (2) of Section 439 enjoins the Court to afford the accused an opportunity of being heard either personally or by pleader in his own defence before an order is made to the prejudice of the accused. Any order sought to be passed under Section 439 enhancing the sentence already passed by the Court below, is undoubtedly an order made to the prejudice of the accused. Therefore, a notice providing an opportunity of being heard either personally or by pleader in his own defence, must be given to the accused person, as the provisions of Sub-section (2) to Section 439 are mandatory. Even if no appeal is preferred by the accused in respect of the conviction made by the court below, he must be given the opportunity provided under Sub-section (2) to contest even the validity of the conviction, when the notice for enhancement of the sentence is given. The opportunity provided under Sub-section (2) to Section 439 is not a mere formality but a substantive that provided to the accused person in order to safeguard his interests. The words 'he had an opportunity of being heard' occurring in Sub-section (2) to Section 439 indicate that the framers of the Code did not contemplate that the accused should be heard in person or by his pleader. What has been actually provided is an opportunity of being heard, but not a regular or actual hearing of the accused personally or by pleader. Such an opportunity to make representation to defend his case must invariably be given to the accused before any order to his prejudice is passed under Section 439. The accused may be informed about the case and that it would be taken up for consideration. When such an opportunity is afforded, it is for the accused person whether to avail himself of such an opportunity or refuse to do so as it is for him to make up his mind and decide one wav or the other. This Court in exercise of its revisional jurisdiction under Section 439 cannot insist upon the personal appearance of the accused if he is unwilling to appear either in person or through pleader to defend the case against him. In case he fails or defaults to avail the opportunity provided, he must blame himself but no one else. The provision must be held to have been sufficiently complied with, if an opportunity to avail the right is given to the accused. Otherwise, an accused may refuse to receive the notice issued to him under this section and make it impossible for the court to pass any orders thereon, if it were to be held that without actual personal service of the notice on the accused, it does not amount to valid service. There is no Provision for substituted service In respect of notices to be served on the accused under Section 439. Service is normally made by delivery to or leaving with the party the notice. Tender of the notice under Section 439 must be held to be sufficient. If the notice is refused by the accused.
4. In the light of the foregoing discussion, we shall examine whether or not there is valid service in the instant case. The notice issued by this Court to the 1st respondent has been returned with the endorsement of the Superintendent of the Central Jail. Visakhapatnam, that the accused was not willing to have the notice served on him. The truth and correctness of the endorsement of the Superintendent. Central Jail is not in dispute. Nor is there any material on record to suspect the correctness of the endorsement. We have, therefore, no hesitation to hold that the 1st respondent A-1 has refused to have the notice served on him when it was tendered through the Superintendent of the Central Jail. In the circumstances, we are in entire agreement with the learned Additional Public Prosecutor that the refusal by the accused to have the notice served upon him would or must be deemed in law to be valid and good service. This view of ours gains support from the decision of a Division Bench of the Madras High Court in The Queen v. Punnamalai Nadan (1882) ILR 5 Madras 199 wherein the Court had to consider whether the refusal of an accused to have a notice served on him amounts to an offence under Section 173 IPC the learned Judses observed:
Service Is usually made by delivering to, and leaving with, the nartv the summons, though under Section 154, Criminal Procedure Code, tender is sufficient. We think that a refusal to receive a summons is not an offence under Section 173 : the words 'any manner prevents the service' cannot apply when the summons is tendered and refused, as it is good service.
5. To the same effect is the decision of the Allahabad High Court in Emperor v. Sahdeo Rai ILR (1918) 40 All. 577 : 19 CriLJ 746 and that of the Rangoon High Court in U. Thudama Wara v. King Emperor (1923) ILR 1 Rang. 49 : 23 CriLJ 557.
6. For all the reasons stated, we hold that the tender of notice which has been refused by the 1st respondent amounts to valid and sufficient service. In the circumstances, we direct the office to appoint a counsel in the State brief panel to represent A-1 in the Criminal Revision Case and assist the Court.