1. When the case came before me for hearing, I saw reason to doubt the legality of the Sessions Judge's proceedings, and, at my request, first the Senior Government Pleader, and subsequently the Public Prosecutor, appeared to argue the legal point that arises in the case.
2. The point for consideration is, whether the Sessions Judge was, as he supposes, competent, when the appeal was preferred to him, to have adopted either of the courses he mentions; or was merely empowered, if he considered the sentences inadequate, to have dismissed the appeal, and to have referred the case to the High Court for enhancement of sentences, under Section 439 of the Criminal Procedure Code.
3. Had Act X of 1872 been still in force, the Sessions Judge, in disposing of the appeal, might, under the provisions of Section 280 of that Code, have enhanced the sentences to any punishment that the Magistrate of the first class was competent to inflict--i.e., to imprisonment of either description not exceeding two years and fine, or he might, under the same section amended by Section 28 of Act XI of 1874, have ordered the appellants to be re-tried; but he could not have ordered their commitment under Section 284, because their offence was triable by the Magistrate of the first class. It was only in sessions cases, in which the Court of Session considered that an accused person had been improperly discharged, that it was competent, under Section 296, to direct that the accused person be committed for trial, and, under the same section, the Court was empowered to report the proceedings for the orders of the High Court, if it was of opinion that the punishment was too severe or was inadequate.
4. The High Court of these Provinces held on more than one occasion, as will be seen by referring to the judgment of Jardine, J., in Queen v. Seetul Pershad N.W.P.H.C. Rep. 1873 p. 168 that the Court of Session can only order the commitment of an accused person in cases exclusively triable by it; and I entertain no doubt that this was a correct exposition of the law during the time that Act X of 1872 was in force.
5. Act X of 1882 did not, so far as I am aware, extend the powers of the appellate Courts; on the contrary, it curtailed them by depriving those Courts of the power of enhancing sentences. That power was, by Section 439 of the Criminal Procedure Code now in force, conferred, under certain restrictions, solely upon the High Courts as Courts of revision. Under the latter section it is laid down that 'where the sentence dealt with under this section has been passed by a Presidency Magistrate or a Magistrate acting otherwise than under Section 34, the Court shall not inflict a greater punishment for the offence which, in the opinion of such Court, the accused has committed, than might have been inflicted for such offence by a Presidency Magistrate or a Magistrate of the first class.'
6. Had the Sessions Judge referred the case under appeal to this Court for orders, the sentences could not have been enhanced to more than a total punishment of two years' rigorous imprisonment and fine--i.e., to the punishment that the Magistrate of the first class was competent to inflict.
7. If the Sessions Judge was competent to order the commitment in the present case, he could do so only under Clause (b), Section 423 of Act X of 1882. If he is empowered by that section to order the commitment, the result of the amendment of the Criminal Procedure Code is that, whilst the Court of Session is, by Act X of 1882, deprived of the power of enhancing a sentence of, say three months' rigorous imprisonment under Section 325 of the Penal Code into a sentence of two years' rigorous imprisonment and fine, it is nevertheless empowered to reverse the conviction under Section 325, and the sentence of three months' rigorous imprisonment and fine, to order a commitment under the same section, and to sentence the accused to rigorous imprisonment for seven years and to fine.
8. The meaning of the sentence 'or order him to be re-tried by a Court of competent jurisdiction subordinate to such appellate Court or committed for trial,' in Clause (b), Section 423 of the Criminal Procedure Code, is, in my opinion, as follows: If in an appeal from a conviction, the appellate Court finds that the accused person, who was triable only by a Magistrate of the first class, or by a Court of Session, has, by an oversight or under a misapprehension, been tried, convicted and sentenced by a Magistrate of the second class, the appellate Court may in that case reverse the finding and sentence, and order the accused to be re-tried by a Magistrate of the first class, or by the Court of Session; and, in like manner, when the appellant who was triable solely by the Court of Session has been tried, convicted and sentenced by a Magistrate of the first class, the Sessions Judge, in disposing of the appeal, is empowered to reverse the finding and sentence, and to order that the accused be committed for trial.
9. Reading Sections 423, 436, and 439 of the Criminal Procedure Code now in force together, I am of opinion that the appellate Court referred to in Section 423 can, in an appeal from a conviction, only order an accused person to be committed for trial when it considers that the accused is triable exclusively by the Court of Session.
10. Under this view of the law, the proceedings of the Sessions Judge are, I consider, illegal, and I therefore reverse them.
11. I nevertheless agree with the Sessions Judge that the sentences that were passed by the Deputy Magistrate were inadequate; I also think that the convictions and sentences contained in the Sessions Judge's judgment are appropriate; and I therefore, under the provisions of Section 439 of the Criminal Procedure Code, direct that each of the four prisoners (appellants) be rigorously imprisoned for two years, under Section 335 of the Indian Penal Code, the sentences commencing from the 4th March 1885, the date of the Deputy Magistrate's judgment.