Prinsep and Stanley, JJ.
1. It is necessary to consider only one matter raised in this application for revision.
2. The learned pleader contends that, inasmuch as the Appellate Court has under Section 428 of the Code of Criminal Procedure taken additional evidence, the prisoner whose appeal has been dismissed has the right of appeal to this Court. He relies on the case of Queen v. Mohesh Chander Chattopadhia (1865) 2 W.R. Cr., 13, contending that Section 428 of the Code of Criminal Procedure, 1898, is in the same terms as that of Section 422 of the Code of 1861, under which that case was decided, and that consequently this Court is bound to follow that case. We observe that in addition to the case cited there is a judgment of a Full Bench,--In the matter of Ram Narain Singh (1863) Unreported,--heard on 14th October 1863 in which Peacock, C.J., Seton Karr, Louis Jackson and Elphinstone Jackson, JJ. (Kemp, J., dissenting), expressed the same opinion on the effect of Section 422 of the Code of 1861.
2. Section 422 of the Code of 1861 was in the following terms:
In any case in which an appeal has been allowed it shall be competent to the Appellate Court, if it think further enquiry or additional evidence upon any point bearing upon the guilt or innocence of the accused to be necessary, to direct such enquiry to be made and additional evidence to be taken. The result of the further enquiry and the additional evidence shall be certified to the Appellate Court, and the Appellate Court shall, thereupon, proceed to pass such judgment, sentence or order as to such Court shall seem right.
3. By the amending Act VIII of 1869 this was repealed and re-enacted thus:
In any case in which an appeal has been allowed, the Appellate Court if it thinks further enquiry or additional evidence upon any point bearing upon the guilt or innocence of the appellant to be necessary, may direct such enquiry to be made and additional evidence to be taken. The result of the further enquiry and the additional evidence shall be certified to the Appellate Court and the Appellate Court; shall thereupon proceed to dispose of the appeal in the manner prescribed by Section 419. Unless the Appellate Court otherwise, direct, the presence of the appellant may be dispensed with when further enquiry is made or evidence taken. The provisions of Chapter XII relating to summoning and enforcing the attendance of witnesses and their examination shall, so far as may be, apply to witnesses examined under this section.
4. We must, therefore, take it that the Legislature by this amendment intended to, and did overrule the judgments of this Court in the unreported Full Bench case as well as in the case of Queen v. Mohesh Chunder Chattopadhia (1865) 2 W.R. Cr., 13.
5. Section 282 of the Code of 1872, which reproduced this portion of the law, after re-enacting the first sentence of Section 422 of the Code of 1861 as amended by the Act of 1869, proceeds thus:
If the. Appellate Court takes further evidence and passes judgment and' sentence, no fresh right of appeal arises in respect of such sentence.' This is a further proof of the intention of the Legislature to supersede the cases, mentioned.
6. Section 428 of the Code of 1882, which is the corresponding section of that Code, was in these terms:
In dealing with any appeal under this chapter, the Appellate Court, if it thinks additional evidence to be necessary, may either take such evidence itself, or direct it to be taken by a Magistrate, or, when the Appellate Court is a High Court, by a Court of Session or a Magistrate. When the Additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal.
7. Section 428 of the Code of 1898, which is the present law, reproduces Section 428 of the Code of 1882, except that it requires the Appellate Court to record its reasons for taking additional evidence.
8. The learned pleader for the petitioner contends that, inasmuch as the Codes of 1882 and 1898 do not contain the terms of Section 282 of the Code of' 1872, which declare that 'no fresh right of appeal arises in respect of such sentence' of an Appellate Court, the right of appeal which was found to exist, in the cases of this Court decided under the Code of 1861 is restored.
9. We cannot accept this view of the present law.
10. The Appellate Court is under the present law as well as under the Code of 1882 directed 'to dispose of the appeal.' It is not competent, as in the previous Code, to pass judgment and sentence, if it takes further evidence. When it passed judgment and sentence under the Code of 1872, as well as under the previous Code of 1861, the Appellate Court could enhance the sentence. The sentence in all such cases (whether there was enhancement or not) becomes the sentence of the Appellate Court, and it was on this ground that this Court, held in the cases cited that there was a right of appeal against such sentence as it was a new sentence.
11. It is otherwise under the present Code. 'The Appellate Court shall thereupon dispose of the appeal.' The Appellate Court is not competent to pass a fresh sentence. Power to enhance is expressly prohibited. The Appellate Court cannot consider and determine a new case disclosed by the additional evidence except in so far as to confirm or modify or set aside the sentence under appeal or to act as otherwise provided by Section 423(b).
12. The law is, therefore, expressed in terms altogether different from those set out in Section 422 of the Code of 1861, on which the cases in this Court proceeded. The function of the Appellate Court is to dispose of the appeal, and Section 430 declares that save in certain cases (which do not apply to the matter under consideration) 'judgments and orders passed by an Appellate Court upon appeal shall be final.'
13. There is, therefore, no right of appeal in the matter before us. The application for revision is discharged.