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Sarjug Rai and ors. Vs. the State of Bihar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1958SC127; 1958(6)BLJR49; 1958CriLJ268; [1958]1SCR768
ActsIndian Penal Code (IPC), 1860 - Sections 395; Code of Criminal Procedure (CrPC) , 1898 - Sections 30, 31(3), 32, 34, 439, 439(1) and 439(3)
AppellantSarjug Rai and ors.
RespondentThe State of Bihar
Cases Referred(Bed Raj v. The State of Uttar Pradesh
Excerpt:
.....jurisdiction has power to enhance sentence beyond limit of maximum sentence that could have been imposed by trial court - appellants convicted for offence of dacoity and sentenced for five years rigorous imprisonment - high court enhanced sentence to 10 years rigorous imprisonment - incidence of offence of dacoity gone up to such extent that in proved cases of serious dacoity deterrent punishment is called for - high court justified in enhancing sentence in view of circumstances disclosed in case - apex court held, high court can impose any sentence upto maximum limit prescribed by code. - indian penal code, 1890 section 34: [dr. arijit pasayat & asok kumar ganguly,jj] scope held, section is based on principle of joint liability. essence of liability is to be found in existence of a..........the special leave was granted is the question of the competence of the high court to impose a higher sentence than that which could have been imposed by the learned assistant sessions judge under s. 31(3) of the code of criminal procedure. the learned trial judge could not have imposed a term of imprisonment exceeding 7 years. the argument is that the high court could enhance the sentence from 5 to 7 years and no more. this argument is sought to be enforced by the consideration that it must be presumed that the learned assistant sessions judge had been entrusted with the trial of the accused persons with the full knowledge that, on conviction, the accused persons could be punished with a term of imprisonment not exceeding 7 years. in its revisional jurisdiction, the high court could.....
Judgment:

Sinha, J.

1. The only question for determination in this appeal is whether the High Court in its revisional jurisdiction, has the power to enhance the sentence, as it has done in the instant case, beyond the limit of the maximum sentence that could have been imposed by the trial court, on the accused persons. The appellants, along with others, were placed on their trial before the Assistant Sessions Judge of Chapra in the district of Saran, for the offence of dacoity under s. 395, Indian Penal Code. They, along with two others, were convicted under s. 395, Indian Penal Code, and sentenced to rigorous imprisonment for 5 years, by the Assistant Sessions Judge, by his Judgment and order dated December 12, 1953. The other accused were acquitted. The convicted persons preferred an appeal to the High Court at Patna. The High Court, in its revisional jurisdiction, while admitting the appeal, called upon the appellants to show cause why, in the event of their convictions being maintained, their sentence should not be enhanced. The appeal and the rule for enhancement of sentence were heard together by a Division Bench of that Court. The High Court, by its judgment and order dated August 4, 1955, allowed the appeal of two of the appellants and acquitted them but maintained the conviction as against the remaining six appellants. On the question of sentence, the High Court observed that the 'offence of dacoity has increased tremendously. It is a very heinous offence as innocent persons, while sleeping in their houses, are attacked and their belongings are taken by force.' The High Court, therefore, was of the opinion that a sentence of five years' rigorous imprisonment was 'extremely inadequate'. It, therefore, enhanced the sentence to 10 years' rigorous imprisonment in each case. The appellants, six in number, moved this Court and obtained special leave to appeal limited to the question of sentence only, the question being whether the High Court had the jurisdiction to enhance the sentence beyond the limits of the power of the trial court itself.

2. The occurrence of dacoity which is the subject-matter of the charge against the appellants, along with others, took place on the night between July 1 and 2, 1952, in the house of Ranjit Bahadur, a minor. After midnight, 16 or 17 dacoits, fully armed with various deadly weapons, broke open the main entrance door of the house with an axe. After going into the house, they broke open boxes and tampered with the iron safe, and removed articles worth twenty thousand rupees. The inmates of the house were over-powered. Some of them, slipping out of the house, raised a big fire which is the customary form of alarm raised against the invading crowd of dacoits. On that alarm, a number of people of the village turned up but had not the courage to face the dacoits for fear of being shot. They contented themselves with using brickbats against the dacoits who made good their escape with their booty. It would, thus, appear that it was a serious occurrence involving the lives and fortunes of the inmates of the house, and naturally, the High Court took a very serious view of the offence.

3. In this Court, the learned counsel for the appellants, who appeared amicus curiae, contended, in the first place, that the High Court had exceeded its powers in enhancing the sentence from 5 to 10 years inasmuch as the trial court itself could not have inflicted a sentence of imprisonment for more that 7 years. Alternatively, he contended that the High Court had not kept in view the dictum of this Court in the case of Bed Raj v. The State of Uttar Pradesh : 1955CriLJ1642 , while enhancing the sentence against the appellants before it. And lastly, it was contended that in any view of the matter, in the circumstances of this case, the sentence of 10 years rigorous imprisonment is too severe. In our opinion, there is no substance in any one of these contentions.

4. The main point on which the special leave was granted is the question of the competence of the High Court to impose a higher sentence than that which could have been imposed by the learned Assistant Sessions Judge under s. 31(3) of the Code of Criminal Procedure. The learned trial judge could not have imposed a term of imprisonment exceeding 7 years. The argument is that the High Court could enhance the sentence from 5 to 7 years and no more. This argument is sought to be enforced by the consideration that it must be presumed that the learned Assistant Sessions Judge had been entrusted with the trial of the accused persons with the full knowledge that, on conviction, the accused persons could be punished with a term of imprisonment not exceeding 7 years. In its revisional jurisdiction, the High Court could exercise its powers only to correct any mistakes made by the learned trial judge. The High Court could, therefore, at the most, say that the trial judge should have inflicted the highest punishment, it had been empowered by the Code, to impose. The High Court could not, at the revisional stage, it was further argued, insist upon a higher punishment being awarded by the trial court than 7 years' rigorous imprisonment.

5. The power of the High Court to enhance a sentence, is contained in sub-s. (1) of s. 439 of the Code, which clothes the High Court with the powers of a Court of Appeal under the Code, as also the power to enhance the sentence. Sub-s. (1) itself, does not contain any words of limitation on the power to enhance the sentence. Hence, the High Court could impose any sentence up to the maximum limit prescribed by the Indian Penal Code, for a particular offence. In this case, therefore, the High Court could impose the maximum sentence of imprisonment for life under s. 395, Indian Penal Code. Is there anything in the Code of Criminal Procedure, which limits that power The fact that the trial of the case was entrusted to a court with a limited jurisdiction in the matter of sentence, could not be used to impose a limit on the power of a High Court to impose a proper and adequate sentence. That the Legislature did not intend to impose a limit on the power of the High Court to inflict an adequate sentence in a trial held by a Court of Session, is made clear by the provisions of sub-s. (3) of s. 439, Criminal Procedure Code, which is in these terms :

'(3) Where the sentence dealt with under this section has been passed by 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. Section 32 of the Code lays down the sentence which magistrates may, ordinarily, impose, which is a term of imprisonment not exceeding two years, in the case of Presidency Magistrates and Magistrates of the first class (omitting all reference to fine). But in certain specified areas, s. 30 empowers the Government to invest a District Magistrate or a Magistrate, first class, with the power to try, as a magistrate, all offences not punishable with death. A magistrate so empowered under s. 30, may pass a sentence of imprisonment for a term of 7 years or less. Thus, the powers of an Assistant Sessions Judge, under s. 31(3) and of a magistrate specially empowered under s. 30 to impose a sentence of imprisonment, are the same, the terms of s. 31(3) and s. 34 being almost identical. From the terms of s. 439(3), it is clear that the only limitation on the power of a High Court to impose punishment is in respect of cases tried by magistrates other than those specially empowered under s. 30, and thus, vested with higher powers of punishment under s. 34. Sub-section (3) aforesaid, does not impose any limits on the powers of the High Court in cases dealt with by a magistrate specially empowered under s. 30. Hence, in such a case, the High Court has the power to impose a sentence higher than that which could have been imposed by such a magistrate. That sub-section has no reference to a trial held by a Court of Session. If the High Court can enhance the sentence beyond the maximum sentence which could be awarded by a magistrate specially empowered under s. 30, and acting under s. 34, there is no reason to hold that the High Court's power in respect of enhancing the sentence in a trial held by an Assistant Sessions Judge, should be limited in the way suggested on behalf of the appellants. Sub-section (3) of s. 439, thus, makes it clear that there is no limitation on the power of the High Court to enhance a sentence to the maximum prescribed by the Indian Penal Code, except in cases tried by magistrates other than those especially empowered under s. 30, Criminal Procedure Code. The learned counsel for the appellants very properly informed us that there are some reported decisions of some of the High Courts which have gone against his contention, and that there is no decision which has taken a view in support of his contention. In our opinion, there is no provision in the Code of Criminal Procedure, which limits the power of the High Court in the way suggested on behalf of the appellants, and there are no reasons which militate against the decision of the High Courts taking that view. The case relied upon on behalf of the appellants in support of their second contention (Bed Raj v. The State of Uttar Pradesh : 1955CriLJ1642 ), also seems to point to the same conclusion as will appear from the following observations at p. 584 :

'Now, though no limitation has been placed on the High Court's power to enhance it is nevertheless a judicial act and, like all judicial acts involving an exercise of discretion, must be exercised along well-known judicial lines.'

7. On the second contention, there is no doubt that the question of sentence is a matter of discretion which has to be exercised in a judicial way, that is to say, the sentence imposed by the trial court should not be lightly interfered with and should not be enhanced unless the appellate court comes to the conclusion, on a consideration of the entire circumstances disclosed in the evidence, that the sentence imposed is inadequate. In the instant case, the High Court has pointed out that the incidence of the offence of dacoity has gone up to such an extent that in proved cases of serious dacoity, like the one in hand, deterrent punishment is called for. The High Court was, therefore, justified in imposing the sentence of 10 years' rigorous imprisonment. In view of the circumstances disclosed in the case, as indicated above, it cannot be asserted that the sentence as enhanced by the High Court is excessive. The appeal is, accordingly, dismissed.

8. Appeal dismissed.


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