Shiv Dayal, J.
1. This is an application for revision for enhancement of sentence awarded by the Additional Sessions Judge, Satna, in Sessions Trial No. 8 of 1963. The revision petition was filed on 11th January 1965 in rather peculiar circumstances, while the judgment of the Sessions Court is dated 7 December 1963. The applicant-State has also made an application for condonation of delay.
2. The non-applicant and three others were committed to the Court of Session under Section 394/397, Penal Code, for having allegedly committed robbery. So far as the non-applicant is concerned, the Additional Sessions Judge found him guilty and convicted him under Section 394, read with Section 397, Penal Code, (as he used a deadly weapon), and sentenced him to suffer rigorous imprisonment for four years. Two of the other three accused were convicted under Section 394, Penal Code, and sentenced to two years rigorous imprisonment; the third was acquitted.
3. Naraindatta (non-applicant) and the other two convicted accused appealed to this Court. That appeal (Criminal Appeal No. 772 of 1963) was disposed of by a learned Single Judge. The conviction of the non-applicant under Section 394/397, Penal Code, was maintained. The sentence awarded to him was reduced to rigorous imprisonment for three years. We are not concerned with the other two appellants.
4. It is conceded both by the learned Deputy Government Advocate and the learned counsel for the accused that the provision relating to minimum sentence contained in Section 397, Penal Code, completely slipped from their minds. That judgment was delivered on 19th December 1964. It appears that subsequently the mistake came to light. On 24 December 1964, the Deputy Government Advocate made an application under Section 561A, Criminal Procedure Code, to bring to the notice of this Court that 'by an oversight'' a sentence had been awarded to the non-applicant, which was not legal and that the error was apparent on the face of the record. It was prayed that necessary orders be passed to bring the sentence in accordance with law. Then, on 11th January 1965, evidently recalling that the learned Additional Sessions Judge had also passed a sentence of four years only, which was less than the minimum prescribed under Section 397, Penal Code, the State made this application for revision.
5. We now proceed to consider the revision petition.
6. It seems to us that the position of the law is clearly this: (1) When an accused person appeals to the High Court against an order of his conviction and the High Court, after issuing notice to the respondent, maintains the conviction and also maintains or reduces the sentence, no subsequent application by the State for enhancement of sentence can be entertained. The State has full liberty to raise the question of enhancement of sentence, if it so desires, in the appeal itself. Once the judgment of the appellate Court has been pronounced, the State is precluded from subsequently raising the question of enhancement of sentence. (2) But, where the appeal of the convict is summarily dismissed under Section 421, Criminal Procedure Code, such dismissal does not operate so as to preclude the State from applying for enhancement of sentence. However, on a notice of enhancement, being issued, the convict acquires a new right under Section 439(6), Criminal Procedure Code, to show cause against his conviction inspite of the dismissal of his appeal.
7. In U.J.S. Chopra v. State of Bombay 1955-2 SCR 94 : ((S) AIR 1955 SC 633), Bhagwati and Imam, JJ., held that in the case of a summary dismissal of the convict's appeal, although the order of the High Court is final and is not subject to review or revision, it does not tantamount to a judgment replacing that of the lower Court; it is merely a refusal to, entertain the appeal. That being so, even after such dismissal, it is open to the State to apply for a revision of the order of the lower Court; regarding sentence. And, once this is done, Section 439(6), Criminal Procedure Code, comes into operation and the accused is entitled not only to show cause against enhancement, but also to show cause against his conviction. On, the other hand, when a judgment is pronounced by the High Court, after notice to the State, it replaces the judgment of the lower Court and thereafter there cannot be any revision at all of the lower Court's judgment. The powers of revision under Section 439, Criminal Procedure Code, can only be exercised qua the judgment of the lower Court and certainly not qua its own judgment.
8. The same conclusion was reached by S.R. Das, J. (as his Lordship then was), but on a different reasoning altogether. It was, observed that an order of dismissal of an appeal under Section 421 is as much an adjudication as an order of dismissal after a full hearing so far as the accused is concerned. The order of the High Court dismissing an appeal is a final judgment of the appellate Court in terms of Section 430 and is a judgment on, merits, so that irrespective of whether the judgment is pronounced after notice to the State or without such notice, in either case, the judgment of the trial Court merges into and is replaced by the judgment of the High Court. Even so, the effect of an order of summary dismissal of an appeal under Section 421, Criminal Procedure Code, is different from that of an order disposing of an appeal after notice to the State. When an appeal by the accused against his conviction is disposed of after notice to the State, the judgment of the High Court is final qua both the parties to the appeal not only as regards the guilt of the accused, but also as regards the sentence in all its aspects, including the question of enhancement of sentence. In such a case, a subsequent application by the State in revision for enhancement of the sentence cannot lie, because the State has had full opportunity to raise the question of enhancement of sentence, if it so desired, in the appeals itself and the finality of the judgment precludes it from raising the question at a subsequent stage after the judgment of the appellate Court is once pronounced. But in case of summary dismissal (under Section 421 Criminal Procedure Code) of an appeal by the accused the judgment is not final qua the State inasmuch as the State did not receive any notice of appeal. Therefore, the State is at liberty to apply for enhancement of sentence in revision.
9. Thus, in the Supreme Court case, although there was difference in the approach to the problem, there was unanimity in the conclusions.
10. Here, the judgment of the learned single Judge was pronounced after a full hearing in the presence of both the parties in exercise of his appellate jurisdiction. The State had then an opportunity to press for enhancement of sentence which it did not do. Now, the judgment of the learned single judge has become final and it has replaced the judgment of the Additional Sessions Judge. This application for revision for enhancement of the sentence passed by the Additional Sessions Judge cannot be entertained, because the judgment of the Additional Sessions Judge, including the sentence passed by him has already been replaced by the judgment of this Court. And, this Court has no power to enhance the sentence passed by itself.
11. In this view of the matter, it is unnecessary to consider the further point, which arises in this case particularly, that the sentence passed by the Additional Sessions Judge was not just maintained by the learned Single Judge, but was reduced.
12. Turning now to the other application, the contention for the State is that this Court, by an oversight, awarded a sentence to Naraindatta appellant under Section 397, Penal Code, which is less than the minimum sentence prescribed under that section, so that the mistake can be corrected by this Court under Section 561-A, Criminal Procedure, Code, it being apparent on the face of the record. It is, further argued that the sentence passed by the Court was 'without jurisdiction' inasmuch as the Court had no power to pass a sentence of less than 7 years under Section 397, Penal Code.
13. It is incontestable that a mistake was committed by this Court. When the conviction of Naraindatta was upheld, the minimum sentence which could be awarded to him was 7 years. But the question is whether we can set the mistake right. Having given a considered thought to this question, our answer is in the negative.
14. In our view, the true position of the law is that a judgment pronounced after hearing both the parties is final under Section 369 of the Code of Criminal Procedure and cannot be altered, except to correct a clerical error. That section does not permit reconsideration of the question of sentence after the judgment has been pronounced. Undoubtedly, under Section 561-A, Criminal Procedure Code, this Court has the power to alter or review its own judgment, if it was passed without jurisdiction or in default of appearance or without notice to the accused. There is a clear distinction between inherent lack of jurisdiction and illegal or irregular exercise of jurisdiction. In the former case, the proceedings are null and void and may be attacked in a collateral proceeding, but in the latter case the course open to the parties is only by way of an appeal or revision. To assume the power to reconsider, with the aid of Section 561-A, Criminal Procedure Code, the question of sentence after delivery of judgment, will be stretching inherent powers to very dangerous extent. The maxim 'actus curiae neminem gravabit' (an act of the Court shall prejudice no man) cannot be applied. The only remedy to get the illegality cured is by way of an appeal to the Supreme Court.
15. This was also the view taken in Public Prosecutor v. Devireddi, ILR 1963 Andh Pra. 144 : (AIR 1962 Andh Pra 479) (FB). In thai case the accused, who was tried by the Sessions Judge on a charge under Section 302, Penal Code, was convicted under Section 326, Penal Code. The accused thereupon preferred an appeal to the High Court. As against the order of implied acquittal on the charge of murder, there was no appeal by the State under Section 417, Criminal Procedure Code. The Single Judge, before whom the appeal came later on for hearing, suo motu issued a notice Under Section 439, Criminal Procedure Code, to the accused to show cause why the sentence should not be enhanced. Both the appeal and revision were heard together and the Single Judge altered the conviction from one under Section 326 to one under Section 302, Penal Code. In a petition under Section 561-A, Criminal Procedure Code, to declare that the judgment of the Single Judge was without jurisdiction, void and of no effect and to quash the same, it was held that inasmuch as the appeal and the revision were properly posted before the Single Judge and he had valid seizin of the case, there was no lack of inherent jurisdiction in disposing of those cases and so the judgment was not a nullity. What the learned Single Judge had done was that he misconstrued the terms of Section 423 (1) (b), Criminal Procedure Code, and exercised the jurisdiction which was legally vested in him in an erroneous or illegal manner by altering the finding under Section 326, Penal Code, into one under Section 302, Penal Code. It had consequently resulted in an erroneous decision being reached by him. See also Ganpat v. Emperor, AIR 1931 Nag 169 and Diwan Singh v. Emperor, AIR 1936 Nag 132.
16. In the present case, this Court, while deciding the appeal of the convict, considered the case in all its aspects and pronounced the judgment. There was no lack of inherent disposing power. The learned Single Judge reduced the sentence to three years. A Judge of this Court while sitting singly and hearing a criminal appeal, has undoubtedly the power to award a sentence of three years. Having regard to the view that the judgment of the learned Single Judge was not null and void, but only erroneous in law, this Court is not entitled to exercise its powers under Section 561-A, Criminal Procedure Code, to set aside or alter that judgment or sentence, which has become final in terms of Section 430, Criminal Procedure Code. The State application under Section 561-A, Criminal Procedure Code, has also to be dismissed.
17. The result is that the revision and also the application under Section 561-A, Criminal Procedure Code, are both dismissed.