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Mahabir Singh and anr. Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1944Cal17
AppellantMahabir Singh and anr.
RespondentEmperor
Cases ReferredEmperor v. Bankatram Lachiran
Excerpt:
- khundkar, j.1. the facts giving rise to this reference are briefly these: on 12th march 1942, a dacoity was committed in a kacheri at kolai kunda near kharagpur, in the course of which three of the inmates of the kacheri were killed. after the usual police investigation, eight persons were placed on trial. charges under sections 396 and 395, penal code, read with section 120b, penal code, were framed against chorobey kurmi, kedar maharaj, hirga, jaymull singh, mahabir singh, arjun singh and rajnarayan sukul; and a charge under section 412, penal code, was framed against kausalya bai. the accused were tried by the additional sessions judge of midnapore and a jury of seven. the jury returned a unanimous verdict in respect of accused jaymulland of accused kausalya bai finding them both not.....
Judgment:

Khundkar, J.

1. The facts giving rise to this reference are briefly these: On 12th March 1942, a dacoity was committed in a kacheri at Kolai Kunda near Kharagpur, in the course of which three of the inmates of the kacheri were killed. After the usual police investigation, eight persons were placed on trial. Charges under Sections 396 and 395, Penal Code, read with Section 120B, Penal Code, were framed against Chorobey Kurmi, Kedar Maharaj, Hirga, Jaymull Singh, Mahabir Singh, Arjun Singh and Rajnarayan Sukul; and a charge under Section 412, Penal Code, was framed against Kausalya Bai. The accused were tried by the Additional Sessions Judge of Midnapore and a jury of seven. The jury returned a unanimous verdict in respect of accused Jaymulland of accused Kausalya Bai finding them both not guilty of the charges framed against them. By a majority of 5 to 2, the jury found the remaining six accused persons guilty under Section 396, Penal Code, and also under Section 120.B/395, Penal Code. The learned Additional Sessions Judge acquitted Jaymull and Kausalya Bai, he convicted the remaining six accused and sentenced them each to undergo eight years' rigorous imprisonment under sec-lion 396, Penal Code, observing

although a most dastardly crime was committed, the murders committed during the commission of the dacoity, could not specifically be fixed upon any of these accused. In the circumstances, it would not be proper to inflict the extreme penalty of law, nor the maximum sentence of imprisonment in this case.

2. No separate sentence was imposed under Section 120B/395, Penal Code. Two of the accused persons, namely, Mahabir Singh and Rajnarayan Sukul, appealed against the convictions and sentences. Their applications for admission of appeal were heard by a Division Bench on 9th March 1943. The Division Bench ordered that the appeal be heard and further directed that a Rule be issued on the two appellants and also upon the four accused persons, who had not appealed, to show cause why their sentences should not be enhanced. The appeal of Mahabir Singh, being Appeal no. 96 of 1943, and the appeal of Rajnaryan Sukul, being Appeal No. 100 of 1943, and the rule, being Revision No. 217 of 1943, came up for hearing on 20th May 1943. At the time of hearing, it was contended that under the provisions of Section 439 (6), Criminal P.C. the accused persons were entitled to shew that the evidence on record was not such as to justify their conviction.

3. The attention of the Court was drawn to the decisions in Khoda Bux Haji v. Emperor : AIR1934Cal105 . and in Alef Shaikh v. Emperor ('35) 62 Cal. 952, wherein it was held that when a Rule for enhancement of sentence is issued on an accused person who has been convicted in a trial by jury, the convicted person has only the same right as regards challenging the actual conviction as he would have had if he had come before the Court by way of a regular appeal preferred by himself or by proceedings in revision instituted by himself, and to certain observations of Henderson J. in Fazarali v. Emperor ('39) 43 C.W.N. 1032. and of the same learned Judge in Moseladdi v. Emperor : AIR1939Cal497 . The learned Judges wore of opinion that the above mentioned eases were wrongly decided, and they submitted the following question for the decision of a Full Bench, viz.:

In a case such as that with which we are now dealing in which an accused person has been called upon to shew cause why his sentence should not be enhanced to a capital sentence, in accordance with the procedure laid down in Section 439, Criminal P.C. has such a person a right to contend that the verdict of the jury was based upon an erroneous view of the evidence and the facts of the case.

4. The argument advanced on behalf of the accused upon whom these rules were issued, is in two compartments. It is argued, in the first place, that whenever the High Court, in the exercise of revision, issues a Rule for the enhancement of a sentence, the person affected has the right to challenge his conviction upon the evidence, even when the trial was held with a jury. Next it is contended, that if, in the case of persons who have been convicted in a jury trial, the ordinary Rule is that such persons may not challenge the verdict upon any ground of fact, an exception must be made in the case of those who are called upon to show cause why the sentences passed on them should not be enhanced to the death penalty. The contention contained in the second compartment of this argument would call for consideration only if the contention embraced in the first compartment failed. In developing the first contention, Mr. Taluqdar urged that Section 439 (1) must be read with Section 435, and also that the language of the latter Section and of Section 439 (6) is wide enough to include the power to interfere with the verdict of a jury on the factSection Section 439 (6) is in these terms:

Notwithstanding anything contained in this Section, any convicted person to whom an opportunity has been given under Sub-Section (2) of showing cause why his sentence should not be enhanced shall, in showing cause, be entitled also to show cause against his conviction.

5. Section 439 (6) is silent regarding the question whether a person showing cause against his conviction under that Sub-Section, can ask the Court to go into the facts in cases in which the conviction was in a jury trial. It is conceded that a person showing cause against his conviction in an appeal cannot ask the Court to go into the facts when the conviction was in such a trial. This limitation upon an accused person's rights, and upon the Court's power in appeal is contained in general terms in Section 418 (1) and more specifically in Section 423 (2), Criminal P.C. They are as follows:

Section 418(1) An appeal may lie on a matter of fact as well as a matter of law, except where the trial was by jury, in which case the appeal shall lie on a matter of law only.

Section 423 (2)Nothing herein contained shall authorise the Court to alter or reverse the verdict of a jury unless it is of opinion that such verdict is erroneous owing to a misdirection by the Judge, or to a misunderstanding on the part of the jury of the law as laid down by him.

6. Section 439 which deals with the High Courts' powers in revision, provides in Sub-Section (1) that the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by SSection 423, 426, 427 and 428 or on a Court by Section 338, and may enhance the sentence.

7. Not only appellate powers, but limitations on appellate powers are thus imported into the domain of revision. But the Section leaves it to the discretion of the High Court to employ-its appellate powers when exercising revisional jurisdiction, and the argument is that the scope of the High Court's jurisdiction in revision is wider than its jurisdiction in appeal. This argument when examined reduces itself to two propositions; firstly, that the subject-matter of revision is more extensive, or in other words that the matters which revision can reach are more numerous than matters which are appealable; and secondly, that the powers of the High Court in revision are more comprehensive than its appellate powers. Both these propositions call for close examination.

8. As regards the subjects which are capable of revision: We find the first mention of such subjects in Section 435 in which the material words are:

The High Court may call for and examine the record of any proceeding ... for the purpose of satisfying itself ... as to the correctness, legality or propriety of any finding, sentence or Order recorded or passed, and as to the regularity of any proceedings...

9. Now the record may be called up for this purpose, viz., that the Court may satisfy itself, as to the correctness, legality or propriety of some thing or things. Obviously, the record is not to be called for merely to satisfy the Court's curiosity, but it is to be called for in Order that the Court may, after examination, take measures to correct by revision what may be incorrect, illegal or improper in some thing or things which the record contains or discloses. The operation of revising calls for the exercise of powers. What those powers may be will be considered when the second proposition is examined. At the present moment, let us ponder the subjects which, under this Section, may arise for revision. The Section says that those subjects are any finding, sentence or Order and also proceedings. These are distinct words. The content of each is separate from the content of overy other of them. What does each of them include The word 'finding' need not detain us. It has a universally accepted meaning-a finding of law can mean only a conclusion on a question of law by a Judge, a finding of fact means a conclusion on a question of fact by a Judge or by a jury. In my opinion 'finding' here includes a conviction or an acquittal. The word 'sentence' is equally simple; it means a direction by which a punishment is prescribed and meted out to a person who has been convicted of an offence. What now is an 'order'? Clearly it is a command or a direction by a Court that something shall be done, discontinued or suffered. Conviction and acquittal are sometimes spoken of as orders, but strictly speaking,, convictions and acquittals are really finding (I shall use the expression 'final findings' to include convictions and acquittals). It follows that 'order' covers commands or directions that something shall be done discontinued or suffered, but it does not include 'sentence' and 'finding.' The word 'proceeding' is not easy to define except by reference to everything which its denotation covers. We must begin by excluding 'finding,' 'sentence' and 'order.' The word 'proceedings' is obviously wider than the expression 'judicial proceeding,' and that expression is defined in Section 4 of the Code as something which 'includes any proceedings in the course of which evidence is or may be legally taken on oath.' 'Proceedings' can refer only to the proceedings of the inferior Court whose record has been brought up. The expression therefore covers everything done and recorded by an inferior criminal Court acting as a Court. But it means everything of this kind which is not a finding, sentence or order. Some of the' things which may be remedied by revision are well known. They include, to mention a fewj orders of dismissal and discharge, refusal to1 commit for trial, refusal to stay proceedings, refusal to quash proceedings, orders under Section 145, Criminal P.C. These matters all answer the definition of 'order' just given. But there are proceedings in relation to which the High Court may exercise its revisional power where it cannot be said that it is necessarily reversing any order. To take a few instances: The High Court can tender a pardon, or Order a pardon to be tendered; it can issue a warrant for the arrest of, and commit to prison, or admit to bail an accused person who has been acquitted.

10. I am of the opinion that the words 'finding,' 'sentence,' 'order,' 'proceedings' cover everything which may be remedied in revision. No part of the subject-matter of revision falls outside these words. There is nothing capable of revision which is not either a finding; or a sentence, or an order, or a proceeding. The words, taken together, are coterminous with the things which revision may reach. That therefore is the scope of revision in so far as its subject-matter is concerned. What now is the scope of appeal in so far as its subject-matter is concerned? Mention of appealable subjects is to be found in more than one Section. Appealable subjects are: (1) Orders rejecting applications for restoration of attached property (Section 405); Orders under Section 118 (Section 406); Orders refusing to accept or rejecting a surety under Section 122 (Section 406A); convictions and sentences passed by Magistrates of the second class-the appeal lying to the District Magistrate- (Section 407); convictions and sentences passed by Magistrates of the first class and by Assistant Sessions Judges the appeal lying to the Court of Session- (Section 408); convictions and sentences passed by Courts of Session (Section 410); convictions and sentences passed by Presidency Magistrates (Section 4ll); acquittals (Section 417).

11. By reason of Section 404, no appeal under the Code can ever lie from anything not mentioned in the Sections indicated above or some other law for the time being in force. Now everything mentioned in those Sections is either a conviction or a sentence or an acquittal or an order, and no appeal will lie from these except to the respective Courts mentioned in those SectionSection It follows that no appeal will lie from mere findings which are not convictions or acquittals, or from any proceedings which are not convictions, acquittals, sentences, orders or mere findings. Now, inas. much as proceedings in this sense, and mere findings, and convictions, sentences and orders from which no appeal lies to the High Court are capable of revision by the High Court, the subject-matter of revision is wider than the subject-matter of appeal. Let me repeat and emphasise the subject-matter of revision which is outside the scope of appeal. That subject-matter comprises-convictions, sentences and orders, appeals from which cannot be enter, tained by the High Court, and also mere findings, which are not convictions or acquittals, and also proceedings other than convictions, sentences, orders and mere findings. Bearing this in mind, let us examine the second of our two propositions which was that the powers with which this Court is armed in revision are wider than its appellate powers. Let us consider first what powers this Court has in appeal. The Sections in which appellate powers are set out are the following:

12. Section 421 which enacts a power to summarily dismiss any appeal. Section 423 provides many powers. They are as follows: Sub-Section (1)-Dismissal of any appeal after hear, ing. Sub-Section (1) (a)-In appeals against acquittal the reversal of the acquittal: the ordering of a further inquiry, a retrial or a committal, conviction and sentence; (b) In appeals against conviction: the reversal of the finding of conviction, the altering of the finding of conviction, the reversal of the sentence, the bringing in of a finding of acquittal, the ordering of a discharge, the ordering of a retrial, or of a committal, the reduction of sentence, the alteration of a sentence to one of another kind, (the enhancement of sentence is a matter which is expressly excluded from the purview of ap. pellate powers); (c) the reversal or alteration of any other appealable order; (d) the making of consequential and incidental orders, and the making of amendments. I shall return to Clause (d) presently. Section 418 (1) expressly bars any appeal on fact when the trial was by jury. Section 423 (2) expressly lays down one application of the Rule contained in Section 418 (1) by enacting that the Court has no power to alter or reverse the verdict of a jury except for an error of law of a particular kind i.e., a misdirection by the Judge, or a misunderstanding on the part of the jury of the law as laid down by the Judge such as to have occasioned an erroneous verdict. But clearly this provision is controlled by Section 418 (1), for it is beyond dispute that there are errors of law of another kind which would, when committed by the Court below, also entitle the High Court in appeal to set aside the verdict, e. g., omission to cross-examine a witness or omission to examine an accused person under Section 342, Criminal P.C. or material error in the charge framed.

13. Before leaving these two provisions, I would stress one important fact, and that is that each of these two provisions places a limitation on the Courts' powers, and it is idle to say that Section 423 (2) enacts no such limitation that being already contained by implication in the wider language of Section 418 (1). There can be no doubt whatever that when powers conferred on a Court of appeal by Section 423 are spoken of, as they are in Section 439 (1), they mean powers subject to the limitation specifically mentioned in Section 428 (2), and can never include a power to reverse the verdict of a jury upon the evidence. Clauses (a), (b) and (c) of Sub-Section (1) of Section423 are very clear, but let us examine Clause (d). Consequential and incidental orders must mean orders which are consequential on, or incidental to, anything done or directed by the Court in an appeal and in the exercise of the powers already set out in els. (a), (b) and (c) of Sub-Section (1) of Section 423. I do not think that the words 'consequential' and 'incidental' add anything to the Courts' appellate powers. They merely give express recognition to what may be regarded as subsidiary powers already contained by implication in the powers referred to in Clauses (a), (b) and (c). But what is meant by the expression 'make any amendment'? Does it mean an amendment of anything appearing in or from a record of a lower Court which is under examination, or does it mean an amendment of something the Court of appeal has itself done under the powers contained in Clauses (a), (b) and (c) The word 'amendment' is very wide, and if it is to include amendments of things done by the lower Court, then the power to 'make any amendment' involves a repetition of some of the powers already provided by Clauses (a), (b) and (c). The words 'amendment' 'consequential' or 'incidental order' appear to be ejusdem generis. If so 'amendment' means, generally speaking, an amendment of an Order or direction of the appellate Court. It does not entitle the appellate Court to alter everything which the record reveals the lower Court to have done or omitted. Suppose the trial Court has omitted to examine sin accused person under Section 342 would the words ' make any amendment' entitle the Court of appeal to examine that accused person itself and itself to record such examination Clearly no. Again suppose the lower Court had allowed a witness to make totally inadmissible and irrelevant statements, and had recorded those statements. Would the words 'make any amendment' enable the appellate Court to strike out those statements from the record? I think not. I cannot find anything in Section 423 or anywhere else which gives an appellate Court express power to 'expunge' anything from the record of the lower Court. Even if a Sessions Judge in charging the jury were to make revolting observations, the High Court could not, under its appellate powers, amend, alter or remove one word of them. We need not be alarmed. I am sure the High Court could apply the censor's pencil under Section 561A, after holding that that portion of the summing up was an abuse of tho process of the Sessions Court, and that it was necessary to erase it in the ends of justice. It could also, in my opinion, do it under its revisional powers which, as I shall presently show, include powers not specifically given, but implied by Section 435. My own view is that 'make any amendment' means, generally speaking, make any amendment of a consequential or incidental nature with reference to what the appellate Court itself has orderded or directed. The other Sections which treat of appellate powers are: Section 426 Suspension of sentence and release on bail; Section 427-Arrest of a person against whose acquittal an appeal has been presented; Section 428 Taking of further evidence at the appellate stage.

14. An examination of the Sections in Chap. 31 of the Code, which I have referred to, shows that appellate powers do not enable a Court to interfere with every order, finding or proceeding of the Court appealed from, but only with certain final orders and findings. The appellate Court cannot for instance reverse interlocutory orders and findings, and it cannot therefore correct proceedings of the lower Court which were not acquittals, convictions, sentences or final orders. For instance, it cannot reverse an Order under Section 205, Criminal P.C. dispensing with or refusing to dispense with the personal attendance of an accused person, but this can be done in revision: Raj Rajeshwari Devi v. Emperor 17 C.W.N. 1248. Again proceedings may be quashed in revision when no offence appears to have been committed, In re Shripad Chandavarkar.52 Bom ('28) 15 A.I.R. 1928 Bom. 184 and proceedings may be stayed in revision, Pitohai v. Mahomad Atham ('32) 19 A.I.R. 1932 Mad. 720. but the very fact that an appeal lies only from final orders prevents the appellate Court from accomplishing either quashing or stay.

15. Let us now examine the High Courts' re-visional powers as indicated in the Code. I think there can be little doubt that the Legislature has in Sections 435 and 439 manifested the intention that the High Court, in revision, may interfere with matters, and may exercise powers, beyond and in addition to the subjects and the powers to which an appellate Court is expressly confined by the Sections contained in chap. 31. Words appearing in Section 439 must be given their fullest natural and grammatical meaning. The words 'may in its discretion exercise any of the powers conferred on a Court of appeal' cannot but mean that the Court is free to exercise at the dictates of its discretion, powers other than those conferred on a Court of appeal. And surely it is plain that the Court must draw upon a reservoir of powers more extensive, if it is to ensure what Section 435 refers to not only as 'legality,' but as 'correctness,' and as 'propriety' of any 'finding, sentence or order,' and then further and in addition to that as 'the regularity of any proceedings.' This view is supported by a number of cases: Hari Das Sanyal v. Saritulla ('88) 15 Cal. 608 (F.B.) Phakir Mandal v. Madar Mandal : AIR1931Cal619 . Emperor v. Varjivan Das ('03) 27 Bom. 84. and 11. Shankarshet Ram Shet v. Emperor ('33) 20 A.I.R. 1933 Bom. 482. at p. 42. In his instructive book on 'Revision and Extraordinary Jurisdiction,' Cecil Walsh J. has put the matter in these words:

The original object of this legislation appears to have been to confer upon superior criminal Courts, in all cases where no appeal was provided, a kind of paternal or supervisory jurisdiction, without the intervention necessarily of any interested party, in Order to correct any miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions, or apparent harshness of treatment, which has resulted on the one hand in some injury to the due maintenance of law and order, or on the other hand in some undeserved hardship to individuals ... The High Courts' powers of revision are specifically prescribed in Sub-Section (1) (of Section 439). They are in substance such as may be exercised by a Court of appeal, and they leave little difference discernible between what the Court may do when sitting in appeal, and what it may Order when sitting in revision. In practice substantial differences exist.

16. I have so far dealt with the scheme of the Sections which treat of appellate and revisional jurisdiction, but the matter does not rest there. Though the High Court's revisional jurisdiction clearly extends beyond the limits of its appellate jurisdiction, the territory beyond those limits is left largely undefined since the words 'correctness, legality or propriety of any finding, sentence or order,' and the words 'the regularity of any proceedings,' are not words of precise denotation and are unqualified. The vagueness does not however present any practical difficulty to us, because a practice has grown up, and is now well settled, in accordance with which the High Court in revision invariably refuses. to interfere with anything otherwise than on certain recognised principles. Thus, all the High Courts act in practice upon the general Rule that findings of fact should not ordinarily be interfered with in revision. It is clear that otherwise the whole time of the High Court might be consumed by application in revision: Phakir Mandal v. Madar Mandal : AIR1931Cal619 . The practice nevertheless recognizes exceptions, for in practice again the High Courts do sometimes interfere in revision with findings of fact. But this, as I shall show, they never do in jury trials, for that is a principle of inflexible rigidity from which the Courts, acting under Section 439, will not depart. I am accordingly led to the conclusion that the words 'the correctness, legality or propriety of any finding, sentence or order' and the words 'the regularity of any proceedings' in Section 435, and the words 'may in its discretion exercise,' in Section 439, do not throw the door open for the exercise of any power or jurisdiction, but generally speaking, only of such as have received recognition in practice. To take another instance the Court will not interfere in revision so as to give a right of appeal where such a right is excluded by the other provisions of the Code: Ahsan-ullah Khan v. Mansukh Ram ('14) 1 A.I.R. 1914 All. 211.

17. I shall now try to show the categories into which the revisional jurisdiction of the High Court may be regarded as logically falling. As has already been seen, appeals lie only from acquittals, from convictions and sentences, and from orders which are final. Moreover appeals do not lie from convictions and sentences, and final orders unless they are of the precise kind mentioned in what I may call the 'appeal Sections,' or to Courts other than those therein respectively indicated. Under Section 439 (5), where an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed. This implies that proceedings in revision may be entertained if the Court desires to interfere suo motu. The Court does sometimes interfere suo motu in appealable cases when no appeal has been preferred. These constitute what I may call the first category, a category which consists of matters from which appeals do lie.

18. Next, there is that group of cases in which the subject which calls for revision is a conviction, a sentence, or a final order, of a kind not stated in the appeal Sections to be matters from which appeals lie to the High Court. These are not appealable to the High Court, but in nature and essence they are similar to the matters which are so appealable, because they are final and not interlocutory. This 1. would call the second category. When dealing with cases within these two categories the High Courts have invariably and consistently exercised their discretion in one way and one way alone; they have converted themselves into Courts of appeal, and have exercised no powers other than those conferred upon them by Sections 338, 423, 426, 427 and 428, and also the power expressly and specifically given by Section 439 to enhance sentences. Incidentally it may be observed that under Section 439 (4) the High Court may not convert a finding of acquittal into one of conviction. The decisions which illustrate this are too numerous and varied to catalogue, but no case has ever been brought to my notice, other than a few cases under Section 439 (6) in which the High Court, when interfering either with an appealable finding or order, or a final finding or Order of the same nature as an appealable finding or order, has employed any power not conferred upon it by chap. 31. This limitation of the exercise of the Courts' powers is however now a matter of practice alone, for the words 'may in its discretion,' leave the Court entirely free to employ other powers not indicated in the appeal Sections.

19. There remains the third category at which we arrive by a process of elimination. What is it that now remains Only interlocutory orders and proceedings which generally speaking involve interlocutory orders. (These may be orders and proceedings in any case, whether the final finding or Order in the case would cause it to fall in the appealable or non-appealable category.) In regard to such orders and proceedings only does the High Court draw upon what I may refer to as its reservoir of undefined powers. But even in regard to these, it is not untrue to say that though undefined by statute, the powers are sufficiently exhibited in the practice of the High Courts, and for practical purposes one knows that one may not invoke a hitherto unknown power to correct or rectify what is a familiar error or defect. The powers which the High Court has in revision always exercised, and the errors and defects for the rectification and correction of which those powers have been always employed are now well known.

20. If there be an error or defect in an appealable finding or order, or in a final finding or Order which is of a nature similar to that of an appealable finding or order, the High Court will search sSection 338, 413, 427 and 428 to see if the remedy is there, or in the express words of Section 439, and if it is not, it will refuse to interfere. It will not arm itself with an unrecognised power not expressly referred to in those Sections which though it may exist, in the vague armory of which Sections 435 and 439 assume the existence, has never yet been em-ployed to correct an appealable finding or order, or a final finding or Order similar to an appealable finding or order. In Phakir Mandal v. Madar Mandal : AIR1931Cal619 , Rankin C. J. enjoined referring Courts to bear in mind the limits which the High Court has, in practice, put upon its own discretion, and not to make a reference when the only objection is to the findings of the Court below upon the merits.

21. Now what are we invited to say here We are invited to say that the High Court should interfere with a verdict, that is the final finding in a jury trial, otherwise than upon grounds of misdirection or other error of law. That finding in the present case is appealable, and therefore falls within the first category which I have outlined above. If we are to follow our own constant and unfaltering practice then, in regard to that finding we will convert ourselves into a Court of appeal, and look at the question only as a Court of appeal must, subject of course to the express words of Section 439. In so doing we will exercise the powers given| to a Court of appeal by Section 423, and expressly by Section 439, and those only. We will not exercise powers which are merely implied by Sections 435 and 439. We should not, when dealing with| appealable findings, depart one iota from our, practice and that of every other High Court in the land. There is grave danger, in my opinion, in the step we are urged to take, and it will require an argument of the greatest cogency to persuade me that the Court is now to fashion out of an amorphous residue of power, some new instrument to which its practice is a stranger, for the purpose of reviewing the verdict of a jury, on the evidence, which in appeal it cannot do, and which in revision it has never done. The argument advanced by Mr. Talukdar that in a Rule for enhancement of sentence, the accused is entitled to ask the Court to reverse the verdict of a jury if, in the Court's opinion, the evidence does not justify it, cannot be supported on the ground merely that there is somewhere a. reserve of revisional power, upon which the Court has drawn in the past, and upon which it may draw again should the necessity arise. That necessity can arise only when the Court in its revisional operations encounters incorrectness, illegality or impropriety in a form or under circumstances in which precedent affords no guide. To Mr. Talukdar's persuasions the simple answer is the practice of the Court which has constantly repudiated the power to interfere on facts with the findings of a jury.

22. Where the Court's powers are discretionary, and the manner of their exercise is not expressly defined by statutory provision, the practice of the Court tends to become the law of the Court, cursus curies est lex curim. In the present case, guidance as regards the manner in which the Court's powers in revision may be exercised, is furnished by Section 423(2),. which is attracted by Section 489 (1). The latter provision contains words which indubitably leave the matter to the Court's discretion; but notwithstanding this, that discretion has been uniformly exercised along the path to which Section 423 (2) points the way. In (1880) 6Q. B.D. Yewens v. Noakes (1880) 6 Q.B.D. 530. at p. 535, Thesiger L. J. in construing Section 11 of 32 and 33 Vic, C. 14, a provision which related to Inhabited House Duty, observed as follows:

While it is true that we have no right to construe the Act itself by the practice whioh has taken place under that Act, it is equally true that we are entitled to construe that Act, not only upon the actual words used, but with reference to the practice which had grown up and was existing at the time when that act was passed.

23. The Rule laid down in the words above, applies, with much greater force to Section 439, Criminal P.C. because the practice existing immediately before the provisions contained in this Section were first enacted in 1882, was, as regards revision of a jury's verdict, not practice merely but statutory law. As I shall presently show, the Code of 1872 expressly forbade the Court when acting in revision to set aside the verdict of a jury except on the ground of misdirection. In Ex parte Tollerton Overseers (1842) 3 Q.B. 792 an application for a certiorari to bring up an Order passed by justices under the Poor Laws contained a prayer to bring up also the examination upon which the Order was made, on the ground that these would show that there was no legal evidence to support the order. Lord Denman, in refusing the application, referred to an earlier case in which it had been held that the Court would take no notice of anything but the order, and said that an understanding prevailed that the Court ought not to do what it was being asked to do. He concluded his judgment with the words:

Upon the whole we consider this to be a specula-tive novelty, without the warrant of any principle, precedent or authority, and that therefore there must be no rule.

24.In a bankruptcy case, 15. Ex parte Scott.91 Buck 275, at page 279, Lord Eldon said: 'An inveterate practice in the law generally stands upon principles that are founded in justice and convenience.' In Queen v. Bolton.113 E.R. 1054. Lord Denman stated:

It is of much more importance to hold the Rule of law straight than, from a feeling of the supposed hardship of any particular decision, to interpose relief at the expense of introducing a precedent full of inconvenience and uncertainty in the decision of future cases.

25. Monmatha Nath Biswas v. Emperor : AIR1933Cal132 . was a case in which this Court had occasion to expound the scope of a Section of the Government of India Act, now repealed-Section 107 of the Act of 1915 which dealt with the High Court's powers of superintendence. Rankin C. J. after quoting the words of Lord Denman in Queen v. Bolton (1841)1 Q.B.66. which I have set out above, proceeded to say:

This is, in my opinion, more in consonance with the nature of the power of superintendence, with judicial principle and with the due administration of justice itself, than the alternative procedure which begins by refusing to recognise any limits to the power or any principles as fit to govern its cercise, and ends by vouching discretion for the result, after an open rehearing of each case.

26. In Probhakarbhat v. Vishwambhar Pandit ('84) 8 Bom. 313 (F. B.), a Full Bench of the Bombay High Court in deciding that where it appeared that a Court had not jurisdiction to hear a case, the plaint should be returned in Order that it might be presented to the proper Court, and no additional court-fees were payable, held that the pre-existing state of the law as recognised by the tribunals was one of the chief means of interpreting laws of procedure. The judgment concluded with the words:

We are of opinion that the long-established practice of this Court as to return of plaints was not opposed to the earlier law, and that it has, at least, indirectly been confirmed by the present law.

27. It is no argument to urge, as Mr. Taluk-dar has done, that the words 'Notwithstanding anything contained in this Section,' with which Sub-Section (6) opens, indicate an intention to override the appellate powers with all their limitations which are attracted by Section 439 (1). Mr. Talukdar's contention is that these words would enable the Court, when acting under Sub-Section (6), to cast aside the fetters placed upon it as a Court of appeal by Section 423 (2). The fetters with which this Court acting as a Court of revision has here to cope are, however, at the present day, not those imposed by any. thing which Section 423 contains or Section 439 (1) in terms imports, but fetters which, as I have endeavoured to show, are really of its own fashioning in the operations of its practice. This practice does not founder in the words, 'Notwithstanding anything contained in this Section' because Section 439 though it may lead the Court to evolve or to continue a practice, does not any where expressly mention practice. The opening words of Sub-Section (6) override the provisions of Sub-Section (5), which prevent the Court from entertaining revisional proceedings at the instance of a party who has a right of appeal, but has not availed himself of that right. They also override the view, once taken, that the language of Section 439 (1) prevented a person upon whom a Rule for enhancement had issued from showing cause against his conviction on any ground whatever: Emperor v. Chinto Bhairava ('08) 32 Bom. 162. But those are, in my opinion, the only barriers which these words were designed to overcome.

28. The view that the language of Sub-Section (6) of Section 439 does not take a Rule for enhancement of sentence out of the operation of the principle that in revision the Court will not interfere with the verdict of a jury on the facts, has been recognised in the following cases: Khoda Bux Haji v. Emperor : AIR1934Cal105 Alef Shaikh v. Emperor ('35) 62 Cal. 952, Fazarali v. Emperor ('39) 43 C.W.N. 1032 Emperor v. Bamji Vala ('40) 27 A.I.R. 1940 Bom. 279 and Ratnasabapathy Goundan v. Public Prosecutor Madras ('36) 23 A.I.R. 1936 Mad. 516. In my judgment these decisions followed established practice, and are moreover not in conflict with any intention which the Legislature has elsewhere unambiguously expressed. I am not unaware of judicial observations of a general nature to the effect that the Court's discretion ought not to be made to run in grooves, and that it would be wrong to impose fetters on the exercise of powers which are left to the Court's discretion in each case as it arises. But such observations can have no possible application here. The discretion conferred upon a Court of revision by Section 439 (1) is not so free as all that. The earliest intention of the Legislature was to prevent the Court in revision from interfering with the verdict of a jury on factSection This was enacted in the Code of 1872, and was never expressly abrogated. Words placing this limitation on the Court's powers were left out of the revisional Sections in the Code of 1882, and the subsequent Codes, but, as I shall presently show, that was because the limitation was also to be found in provisions dealing with appellate powers and these powers were then imported into the sphere of revision by wording a revisional Section in such a manner as to make it attract the Court's appellate powers. It seems to me that this alteration in the scheme of the Sections was largely a drafting device adopted for the purpose of securing brevity and the avoidance of repetition.

29. An examination of the history of the revisional Sections will clearly show that the practice of not interfering with the verdict of a jury on facts, has grown out of statutory provisions. The frame work and language of the revisional Sections have undergone changes since the first Code of 1861, and although it is unnecessary to discuss the reasons which have, from time to time, influenced the Legislature in making amendments, the steps in the process through which these provisions have passed would re-pay study. Even a cursory inspection of the successive Sections assists also the further conclusion that while the revisional jurisdiction of the High Court is wider than its appellate jurisdiction, the revisional powers which constitute the overplus were never completely contained in definitive words, but were always to some extent, left to the Courts to work out in practice. A reference to some of the revisional Sections in the earlier Codes is instructive. In the Code of 1861, three of the Sections in chap. 19 which was headed 'Sudder Court as a Court of Eevision' were as follows:

404. General power of revision by the Sudder Court The Sudder Court may, on the report of a Court of Session or of a Magistrate, or whenever it thinks fit, call for the record of any criminal trial or the record of any judicial proceeding of a criminal Court, other than a criminal trial, in any Court within its jurisdiction, in which it shall appear to it that there has been error in the decision on a point of law, or that a point of law should be considered by the Sudder Court, and may determine any point of law arising out of the case, and thereupon pass such Order as to the Sudder Court shall seem right

405. Sudder Court empowered to call for and examine records of Court of Session It shall be lawful for the Sudder Court to call for and examine the record of any case tried by any Court of Session for the purpose of satisfying itself as to the legality or propriety of any sentence or Order passed, and as to the regularity of the proceedings of such Court. If it appear to the Sudder Court that the sentence passed is too severe, the Sudder Court may paBS any mitigated sentence warranted by law. If the Sudder Court shall be of opinion that the sentence or Order is contrary to law, the Sudder Court shall reverse the sentence or Order and pass such judgment, sentence, or Order as to the Court shall seem right, or, if it deem necessary, may Order a new trial.

406. Proceedings of a case revised by Sudder Court to be certified to Court in which conviction was had Whenever a case shall be revised by the Sudder Court under this Chapter, the Sudder Court shall certify its decision or Order to the Court in which the conviction was had or by which the Order was passed, and such Court shall thereupon make such orders as are conformable to the decision of the Sudder Court, and if necessary amend the record in accordance therewith.

Proviso Provided that, in any case which shall be revised by the Sudder Court under this Chapter, it shall not be competent to the Sudder Court to reverse the verdict of the jury, or, except as provided in this Chapter, to alter or reverse the sentence or Order of the Court below.

30. Attention should be directed to the words, 'as to the legality or propriety of any sentence or Order passed, and as to the regularity of the proceedings of such Court' in Section 405, and also to the proviso to Section 406 which nevertheless at the same time prohibited the Sudder Court from reversing the verdict of a jury on any ground at all. In 22 Gorachand Ghose (68) 11 W R Cr. 29 (F.B.). a Full Bench of this Court had to consider the question whether it was open to the Court in revision under the Code of 1861 to Order a new trial in a case in which the Judge's direction to the jury was bad in law. The answer given by the Pull Bench was in the negative, and it will presently be noted that in the Code of 1872, the law was amended so as to empower the High Court in revision to set aside the verdict of a jury and to direct a new trial, whenever it was of opinion that the jury had been misdirected. The intention of the Legislature not to allow the Court in revision to set aside the verdict of a jury on facts is thus manifest from the earliest years. In the Code of 1872, the Sections to which a reference may lie usefully made are the following:

294. Power to call for records of Subordinate Courts The High Court may call for and examine the record of any case tried by any Subordinate Court, for the purpose of satisfying itself as to the legality or propriety of any sentence or Order passed, and as to the regularity of the proceedings of such Court.

297. Power of revision If, in any case either called for by itself or reported for orders, or which comes to its knowledge, it appears to the High Court that there has been a material error in any judicial proceeding of any Court subordinate to it, it shall pass such judgment, sentence or Order thereon as it thinks fit.

Power to Order commitment If it considers that an accused person has been improperly discharged, it may Order him to be tried, or to be committed for trial;

Power to alter finding and sentence If it considers that the charge has been inconveniently trained, and that the facts of the case show that the prisoner ought to have been convicted of an offence other than that of which he was convicted, it shall pass sentence for the offence of which he ought to have been convicted;

proviso as to power of altering finding -. Provided that, if the error in the charge appears mate- dally to have misled and prejudiced the accused person in his defence, the High Court shall annul tho conviction, and remand the case to the Court below, with an amended charge, and the Court shall thereupon proceed as if it had itself amended such charge.

Power to annul conviction If the High Court considers that any person convicted by a Magistrate has committed an offence not triable by such Magistrate, it may annul the trial and Order a new trial before a competent Court.

Power to annul improper, and to pass proper sentence If it considers that the sentence passed on the accused person is one which cannot legally be passed for the offence of which the accused per-son has been convicted, or might have been legally aonvicted upon the facts of the case, it shall annul such sentence and pass a sentence in accordance with law.

If it considers that the sentence passed is too severe, it may pass any lesser sentence warranted by law; if it considers that the sentence is inadequate, it may pass a proper sentence.

Suspension of sentence-The High Court may, whenever it thinks fit, Order that the sentence, in any case coming before it as a Court of revision, be suspended; and that any person imprisoned under such sentence be released on bail, if the offence for which such person has been imprisoned be bailable.

Power of revision confined to Sigh Court-Except as provided in Sections three hundred and twenty eight and three hundred and ninety eight, no Court, other than the High Court, shall alter any sentence or Order of any Subordinate Court, except upon appeal by the parties concerned.

Optional with Court to hear parties -No person has any right to be heard before any High Court in the exercise of its powers of revision, either per- f sonally or by agent; but the High Court may, if it thinks fit, hear such person either personally or by agent.

299. Order on revision to be certified to lower Court or District Magistrate-Whenever a case is revised by the High Court under this chapter, it shall certify its decision or Order to the Court in which the conviction was had or by which the Order was passed; or, if the conviction or Order waa passed by a Magistrate other than the Magistrate of the District, to the Magistrate of the District.

The Court or Magistrate to which the High Court certifies its Order shall thereupon make such orders as are conformable to the decision of the High Court and, if necessary, the record shall be amended in accordance therewith:

In cases revised by the High Court under this chapter, the High Court shall not alter or reverse the sentence or Order of the Court below, except as herein provided; nor shall it reverse or set aside the verdict of a jury, unless it is of opinion that the jury was misdirected by the Judge. In that case it may set aside the verdict and direot a new trial, if it think fit to do so.

31. What is of interest here is the fact that although the wide scope of revision was again recognised in the words 'as to the legality or propriety of any sentence or Order passed, and as to the regularity of the proceedings of such Court' in Section 295, and the words 'material error in any judicial proceeding' in Section 297, paragraph 3 of Section 299 forbade inter- & ference with the verdict of a jury except when the High Court was of opinion that the jury had been misdirected. Attraction of appellate powers, in a Section dealing with revision, first appears in the Code of 1882. In this Code the prohibition expressly contained in para. 3 of Section 299 of the Code of 1871 against interference with the verdict of a jury except on a ground of misdirection is not to be found in any of the Sections which deal with revisional powers, but Section 439 (a revisional Section) expressly says that the High Court may, in its discretion, exercise any of the powers conferred on a Court of appeal. In the Code of 1872, Section 271 which related to appeals from convictions in sessions trials, had provided that if the conviction was in a trial by jury, the appeal would be on a matter of law only. In the Code of 1882, this provision found place in Section 418, and in Section 423 which set out a number of appellate powers, it was enacted in the final Clause that nothing contained in that Section was to authorise the Court to alter or reverse the verdict of a jury, unless it was of opinion that such verdict was erroneous owing to a misdirection by the Judge, or to a misunderstanding on the part of the jury of the law as laid down by him. It seems to me reasonable to suppose that the scheme of the Code of 1882 was that, having embodied the prohibition against interference with a jury's verdict, on grounds other than misdirection, in an appellate Section, it was considered superfluous to expressly repeat it in the revi-sional Sections, when all the appellate powers together with their limitations were to be imported into the Court's store house of revisional powers by Section 439 in which there appear, for the first time in the Code, the words 'the High Court may in its discretion exercise any of the powers conferred on a Court of appeal.' This view finds support in a comparison of the revisional Sections with the appeal Sections as they stood in the Codes of 1872 and 1882. To take an instance, in Section 297 (a revisional Section) of the Code of 1872 a number of specific powers are enumerated such as the power to alter findings and sentences, to annul convictions, and to suspend sentences; similar powers are specifically given in Section 280 (an appeal Section); there is virtual repetition, the reason being that there are no words in any Section contained in the chapter on superintendence and revision which attract the High Court's appellate powers set out in the appeal SectionSection In the Code of 1882 the Sections which deal with revision are silent about the power to alter findings and sentences, to annul convictions and to suspend sentences. The reason is that these powers are specified in an appeal Section-Section 423-and they are automatically attracted when the High Court acts in revision by the words in Section439 'The High Court may, in its discretion, exercise any of the powers conferred on a Court of appeal.

32. Clauses (1) and (2) of Section 435 in the Code of 1882 were re-enacted in sub-sSection (1) and (2) of Section 435 of the Code of 1898. Provisions with which we are not concerned were added to the Section by Act 18 of 1923. Section 439, as it stood in the Code of 1882, was repeated in the same form in the Code of 1898, except that its four Clauses were numbered as Sub-Sections, and Sub-Section (5) was added. Act 8 of 1923 deleted the figure '195' after the word 'Sections' in Sub-Section (1) and it enacted Sub-Section (6), which as e already stated is in these terms:

Notwithstanding anything contained in this Section any convicted person to whom an opportunity has been given under Section 2 of showing cause why his sentence should not be enhanced shall, in showing cause, be entitled also to show cause against his conviction.

33. Are we to say that we are justified by the language of this provision in allowing a convicted person to urge that the verdict of the jury which found him guilty ought to be set aside because the evidence does not support it My answer to this question must, for the reasons I have stated, be emphatically in the negative. Jenkins C. J., in Emperor v. Bankatram Lachiran ('04) 28 Bom. 533 in repelling the argument that the language of Section 439 was capable of sustaining a Rule of practice which would justify the High Court in refusing to interfere in revision with findings of fact in trials not held by jury, observed that the Court ought not to fetter its own discretion. The Rule laid down in that case has been followed in this Court, which, as I have already stated, does in practice sometimes interfere in revision with findings of fact in trials not held by jury. The power to interfere in revision on grounds of fact in trials other than jury trials has never at any time been expressly negatived by the Code and so any g practice to the contrary would have no statutory foundation to support it. The observations of Jenkins C. J., cannot therefore be called in aid of the argument under consideration here which is that this Court in revision has the power to interfere also with the verdict of a jury on facts.

34. But, proceeds the argument, even if it is the rule, that, not even in revision will the High Court interfere with the verdict of a jury except on the ground of misdirection, the Court must make an exception to that Rule in cases of the type to which the present case appertains, cases in which the convicted person is striving to ward off a sentence of death. It is here pointed out that the principle underlying such an exception has been accepted by the legislature, which in its wisdom has given effect to the exception in other Sections of the Code. Under Section 374, whenever the Court of session passes a sentence of death the proceedings must be submitted to the High Court. In Section 376, it is provided that in any case submitted under Section 374, whether the case was tried with assessors or by the aid of a jury, the High Court may confirm the sentence, or may annul the conviction and convict the accused of any offence of which the sessions Court might have convicted him, or may acquit the accused person. Further, this privilege, which actually amounts to an appeal on facts whether the trial was held with a jury or with assessors, has not been confined to persons upon whom capital sentence has been pronounced, but has been extended by Section 418 (2) to persons not sentenced to death, who have been convicted in the same trial with a person so sentenced. Verily the way of the Legislature, like that of an eagle in the air, is sometimes too wonderful for me. The right to challenge the verdict of a jury on facts is expressly given to the person who has been sentenced to death it has been expressly given to the person who, though not so sentenced, has been convicted in the same trial as the person upon whom capital punishment has been pronounced; it has not been expressly given to the person, who by reason of a Rule for enhancement of sentence issued by this Court, stands in peril of being hanged. It is a glaring anomaly amounting to contradiction, and it is unfair. We are asked to ease the anomaly, and to rectify the unfairness. The view taken by my learned brothers, other than Sen J., is that we may do so on the principle that the Legislature could not surely have intended such a result. In other words, it is to be presumed that the Legislature would not have permitted Section 439 (6) to stand as it does had it been fully aware of the bearing on it of Section 418 (2) and Section 376. Now, there are two well known rules of interpretation which arise to confront this reasoning. The first is that the intention of the Legislature is not to be speculated upon. In Salomon v. Salomon & Co. (1897) 1897 A. C. 22. at p. 38 Lord Watson stated the Rule as follows:

Intention of the Legislature' is a common but very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the Legislature probably would have meant, although there has been an omission to enact it. In a Court of law or equity, what the Legislature intended to be done, or not to be done can only be legitimately ascertained from what it has chosen to enact, either in express words or by reasonable and necessary implication.

35.Here the Legislature has enacted in the dearest terms in Section 423 (2), that in appeal the Court shall not alter or reverse the verdict of a jury unless it is of opinion that such verdict is erroneous owing to a misdirection by the Judge, or to a misunderstanding on the part of a, jury of the law as laid down by him, and the case out of which the present reference has arisen is an appealable case. Be it noted also that none of the accused had the special right of appeal provided in Section 418 (2) because no one had been sentenced to death. But, persists the argument, this is revision, and in revision there are no definitely visible limits to the Court's power. That may be so, but in appealable eases as already pointed out the Court's practice in revision follows the law which governs appealSection I would repeat that it is not an arbitrary practice that in revision the Court will not interfere with the verdict of a jury on facts. As already seen that was expressly the law under the Codes of 1861 and 1872, the present practice has its roots in law, and there is nothing in the law as it now stands which overrides that practice. In these circumstances our practice is binding on us.

36. Speaking for myself, I am conscious of a pronounced aversion to saying anything which would have the effect of circumscribing this Court's discretionary powers, but when I find that those powers have always uniformally been exercised in a certain manner which is not inconsistent with the language of an existing statute, and that the practice which governs that exercise is founded on earlier statutory provisions which have never been expressly repealed, I am not prepared to allow my natural inclination to override good sense, and to read into words a remoter meaning than that which they reasonably bear. Therefore when Section 439 says that the High Court may in its discretion exercise any of the powers conferred on a Court of appeal, I must take it to mean that the discretion is to be exercised only in a manner which conforms with established practice. The second Rule of interpretation which is in conflict with this reasoning is that it is not for the Court to supply a oasus omissus. In Crawford v. Spooner (1846) 6 Moo. P.C. 9 the Judicial Committee put this canon of construction in these words:

We cannot aid the Legislature's defective phrasing -of an Act, we cannot add and amend, and by construction make up deficiencies which are left there. 'If', said Lord Brougham, in Gwynne v. Burnell (1840) 7 Cl. and F 696, we depart from the plain and obvious meaning on account of such views, wo do not in truth construe the Act, but alter it. We add words to it, or vary the words in which its provisions are couched. We supply a defect which the Legislature could easily have supplied, and are making the law, not interpreting it.

37. As I have shown, our practice follows the statute. The former we should not lightly vary, the latter we may not amend. To deal with the present case, and others of the same type, in which a Rule has been issued for enhancing a sentence of imprisonment or transportation to one of death, as though they were exceptions to the Rule that the Court will not inter fere with the verdict of a jury on facts, would, in my judgment, be not only to make a fundamental departure from our established practice but would also virtually amount to legislating. The Legislature has in an unmistakable manner refrained from giving its assent to the proposition that in revision of the present kind the High Court may interfere with a jury's verdict on fact. At the time when Sub-Section (6) of Section 439 was enacted, the Legislature certainly had before it the case of persons who had been convicted in trials by jury of offences punishable with death, but had not been sentenced to suffer the extreme penalty. It was the same Act (Act 18 of 1923) which placed Sub-Section (6) of Section 439 and Sub-Section (2) of Section 418 on the Statute Book. It is somewhat startling that whereas it was giving the right to challenge the verdicts of juries on facts to a certain class of convicted persons in one situation, it was not giving it to the self-same class in another situation, there being between the two situations no discernible difference of principle. Are we to assume that the Legislature had forgotten Sub-Section (2) of Section 423, or that it relied on the wide implications of Sections 435 and 439, and was totally ignorant of the well-founded practice of the High Courts not to interfere in revision with appealable orders except as provided in the appeal Sections and expressly in Section 439 I am unable to subscribe to such an assumption.

38. I realise the anomaly and the unfairness, and the only course open to me is to take up the same position as I did, along with my learned brother Henderson, in Fazarali v. Emperor ('39) 43 C.W.N. 1032.in which we refused to enhance the sentence to one of death on the ground that in so doing we would be placing the accused person in a worse position than he would have been in had he been sentenced to death by the Sessions Judge. I adhere to that attitude. Being powerless to reverse the verdict of a jury on fact, except under Section 418(2) and Section 376, I shall decline to interfere when a Rule has been issued to show cause why a person convicted in a jury trial should not be sentenced to death,for in pronouncing upon him the extreme penalty of the law, without allowing him to say that on the evidence he should be acquitted, I would be drawing between him and a person who had already been sentenced to death or an appellant who had been convicted along with such a person a distinction that would be ridiculous. The consideration that in persisting in such an attitude I might be failing in a judicial duty does, not oppress me, because, revision is in any event discretionary. I have one word more to say. Section 439 Sub-Section (6) not only gives a convicted person the right to show cause against his conviction, but it acknowledges the right, already included in Sub-Section (2) of showing cause why his sentence should' not be enhanced. Mr. Bhattacharjee, who appeared for the Crown, rightly conceded that in showing cause against enhancement of his sentence a convicted person is entitled to take the Court fully and freely into the evidence. The two rights are separate rights, and it is very clear that no Court can properly determine what sentence would be appropriate without examining the whole of the evidence for itself regardless of what the jury may have thought. This is of the greatest importance, and should never be lost sight of when any Rule for enhancement comes up for consideration.

39. In the result, I would answer the question which this reference contains by saying that in a case in which an accused person has been called upon to show cause why his sentence should not be enhanced to a capital sentence in accordance with the procedure laid down in Section 439, Criminal P.C. such person has not the right to contend that the verdict of the jury was based upon an erroneous view of the evidence and the facts of the case. I would also say that in my opinion, the eases in Khoda Bux Haji v. Emperor : AIR1934Cal105 Alef Shaikh v. Emperor ('35) 62 Cal. 952, and Fazarali v. Emperor ('39) 43 C. W. N. 1032, were rightly decided.

Lodge, J.

40. The question submitted to the Full Bench is as follows:

In a case such as that with which we are now dealing in which an accused person has been called upon to shew cause why his sentence should not be enhanced to a capital sentence, in accordance with the procedure laid down in Section 439, Criminal P.C. has such a person a right to contend that the verdict of the jury was based upon an erroneous view of the evidence and the facts of the case.

41. During argument a distinction was made between rules for enhancement in which a sentence of death might be imposed, and other rules for enhancement, in which there could be no question of imposing sentence of death. In supporting the views expressed by the learned. Judges, who made the reference, Mr. Talukdar who appeared for the appellant in Appeal No. 96, contended that the powers exercised by the High Court in its revisional jurisdiction are not limited to those prescribed in Section 439 (1), Criminal P.C. and for this purpose he contended that powers of revision are also conferred on the High Court under Section 435 of the Code and there are also powers inherent in the High Court which are not to be found in the Code of Criminal Procedure.

42. Mr. Talukdar next argued that even if the powers of the High Court in revision are ordinarily limited to those set out in Section 439 (1), Criminal P.C. those powers are extended by the special provisions of Section 439 (6). With regard to the first branch of the argument, it is sufficient to say that the power to issue a Rule for enhancement of sentence and the power to enhance sentences are specifically conferred upon the High Court by Section 439 of the Code, and the conditions under which that power is to bo exercised are laid down in the Section. In these circumstances, whatever may be the position with regard to other cases of revision, we are of opinion that the powers of the High Court in dealing with rules for enhancement are to be derived from the provisions of this Section. Section 439 (1) provides:

In a case of any proceeding the record of which has been called for by itself or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of appeal by SSection 423, 426, 427 and 428 or on a Court by Section 338 and may enhance the sentence; and when the Judges composing the Court of revision are equally divided in opinion, the ease shall be disposed of in manner provided by Section 429.

43. With the possible exception of Sub-Section (6) there is nothing else in the Section which purports to give the High Court still wider powers when sitting as a Court of revision. We may ignore, for the present, Sections 426, 427, 428 and 338 of the Code, and for our purposes treat Section 439 (1) as conferring upon the High Court when sitting as a Court of revision, the powers conferred on a Court of appeal by Section 423 of the Code. Therefore, when considering whether to revise any conviction, acquittal or other Order of a Subordinate Court, the High Court may in it3 discretion treat the Order in question as though it were an appealable Order and as though an appeal from it had been duly presented. If the whole of Section 423 of the Code is applicable in such a case, the limitation contained in Section 423 (2) is also applicable. Mr. Talukdar argued that the Court is entitled to exercise all the powers conferred by Section 423 without any of the limitations contained in the Section. The fact that the legislature made special provision for enhancement of sentences in Section 439 (1) does not support the view that the Court is not bound by the limitations on its power imposed in Section 423.

44. We have not been shown any case in which any High Court in India has claimed in ordinary rules (i.e., not rules to enhance sentences) the power to alter or reverse the verdict of a jury without being of opinion that such verdict was 'erroneous owing to a misdirection by the Judge or to a misunderstanding on the part of the jury of the law as laid down by him.' On the other hand, two decisions of this Court, namely, Saroda Charan v. Emperor 0043/1925 : AIR1925Cal795 and Bepin Chandra Mandal v. Emperor 0043/1928 : AIR1928Cal444 seem to be consistent with the view that Section 423 (2) applies equally to revision cases. We see no reason for holding that Section 423 (2) is not binding on a Court of revision when dealing with rules other than rules for enhancement of sentence. Section 439 (2) reads:

No Order under this Section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence.

45. Section 439 (6) reads:

Notwithstanding anything contained in this Section, any convicted person to whom an opportunity has been given under Sub-Section (2) of showing cause why his sentence should not be enhanced shall, in show-ing cause be entitled also to show cause against his conviction.

46. It has been contended first that the phrase 'shall... be entitled also to show cause against his conviction' must mean that he can show any cause whatever and not merely such cause as, in other circumstances, the Court is entitled to act upon; and secondly, that the phrase 'notwithstanding anything contained in this Section' must mean, among other things, that the Court is no longer restricted to the powers conferred by Section 439 (1). In our opinion the phrase 'shall... be entitled also to show cause against his conviction' confers a right upon the accused, but does not extend the powers of the Court, which are still limited to those set out in Section 439 (1). Similarly the phrase 'notwithstanding anything contained in this Section' removes bars contained in the Section which previously prevented the convicted person from showing that his conviction was not sustainable even by a Court acting within the limits prescribed by Section 423. Thus the bar provided by Section 439 (5) was removed in these cases, and the bar imposed in practice by High Courts on the strength of the words 'in its discretion' in Section 439 (1) was also removed. In fact, there seems reason to believe that the Sub-Section was inserted in 1923 for the pur-poses of removing this latter bar which had been imposed in Emperor v. Chinto Bhairava ('08) 32 Bom. 162 where the learned Judges observed:

It has been the invariable practice of this Court in such cases to acoept the conviction as conclusive and to consider the question of enhancement of sentence on that basiSection That practice has been consistently adhered to by this Court for over 25 years now, and ought, we think, to be followed. . . It was open to the opponent to apply for revision of the conviction, but having failed to avail himself of that, he cannot be permitted to assail the conviction in a proceeding where the sole question is whether the sentence passed by the lower Court is adequate or not.

47. In our opinion, there is nothing in the language of Section 439 (6) to suggest that the powers of a Court of revision, dealing with a Rule for enhancement, are wider than the powers conferred by Section 423 on a Court of appeal. This is the view taken by this Court in Khoda Bux Haji v. Emperor : AIR1934Cal105 and in Alef Shaikh v. Emperor ('35) 62 Cal. 952. and the view accepted as correct in Fazarali v. Emperor ('39) 43 C. W. N. 1032, and Moseladdi v. Emperor : AIR1939Cal497 . The same view has been taken in Emperor v. Jorabhai Kisabhai : AIR1926Bom555 . Emperor v. Bamji Vala ('40) 27 A.I.R. 1940 Bom. 279. Batnasabapathy Goundan v. Public Prosecutor Madras ('36) 23 A.I.R. 1936 Mad. 516. Emperor v. Vishwanath : AIR1936All850 Ram Lakhan v. Emperor ('32) 19 A.I.R. 1932 Pat. 126 and Emperor v. Dhanna Lal ('29) 16 A.I.R. 1929 Lah. 797. 30 Cr. L. J. 815. No case has been cited (in which there was no question of a death sentence being imposed) in which the contrary view has been taken. In the circumstances we are of opinion that Khoda Bux Haji v. Emperor : AIR1934Cal105 and Alef Shaikh v. Emperor ('35) 62 Cal. 952 were rightly decided. The question whether the Court has wider powers in cases where a Rule is issued to show cause against enhancement of sentence to a capital sentence, requires separate consideration. In Fazarali v. Emperor ('39) 43 C. W. N. 1032, Henderson J. observed:

We are bound to say that in our opinion the reasons given by the learned Judge for passing a lesser sentence are far from convincing. However, had the learned Judge done his duty, the appellants would have been entitled to ask us to go into the facts and to acquit them if we were not satisfied with the evidence. They certainly cannot be put in a worse position, because of this failure of the learned Judge and we shall certainly not sentence them to death unless we are ourselves satisfied that the evidence ought to be believed.

It is now well settled in this Court that on an appeal from the verdict of a jury, an accused person is not entitled to appeal on the facts merely because he is called upon to shew cause why the sentence should not be enhanced.

In one of these cases a short time ago the learned Deputy Legal Remembrancer stated that the Crown would not certainly oppose our examining the facts in Order to see whether a sentence of death should be imposed. But the Crown would strenuously oppose an attempt to upset the verdict merely because we disagreed with the jury on the proper view of the factSection We are not prepared to take this course. It would mean that there would be two final Courts of fact on exactly the same evidence, one to decide whether the accused is to be convicted and another to decide whether he is to be sentenced to death. That is the system which is in vogue in connexion with conspiracy trials. Both my learned brother and I have been protesting against it for years and we shall certainly do nothing to encourage it.

48. In Moseladdi v. Emperor : AIR1939Cal497 . Henderson J. observed:

The murder was a brutal and cold blooded one. There were no extenuating ciroumstances of any sort and the reasons given by the learned Judge for not inflicting the death sentence do not commend themselves to us.

The position however is as usual very difficult from the practical point of view ... we cannot examine the facts for ourselves to decide whether the appellants are guilty or not. Being placed in that position, we are certainly not going to inflict a sentence of death. The result of the failure of the learned Judge to do his duty in this case was that the appellants are precluded from asking us to examine the evidence in the case to see whether we are ourselves satisfied of their guilt. It would be an intolerable position i in such circumstances they were to be sentenced to death. We shall not therefore interfere with the sentences ....

49. In these two cases, the learned Judges have not held that they are entitled to reverse the verdict of the jury in cases where there are no misdirections, nor have they held that they have no power to enhance the sentences. The most that can be said is that the learned Judges have in their discretion refused to consider whether they were fit cases for enhancement of sentence because they were of opinion that they had no power to acquit the convicted persons if they were not satisfied of their guilt. In effect the learned Judges said:

We shall not enhance the sentences of those persons who deserve to be hanged, because we have no juris-diction to acquit those whom we consider to be innocent.

I am not satisfied that this policy of non-co-operation with the Legislature is the correct policy for the Court to adopt. Incidentally there is nothing in Section 423 (2) to prevent the Court of appeal or revision examining the evidence: the Court is merely prevented from altering or reversing the verdict except on certain grounds. The Court may examine the evidence for any other purpose. The real problem is whether in a case in which, if his guilt is proved, the convicted person deserves to be sentenced to death, the Court is entitled to examine the evidence and acquit the accused as if there had been a reference under Section 374. It is clear that the Court can examine the evidence. It is clear, that the Court can in suitable cases enhance the sentence to a sentence of death. The intention of the Legislature, so far as it can be ascertained from the Code of Criminal Procedure, is that save and except in those cases in which sentence of death is passed, the verdict of the jury shall be final, provided that there are no misdirections in the charge and the jury have not misunderstood the law and provided that the Sessions Judge does not make a reference under Section 307. On the other hand, when an accused is sentenced to death, the sentence must be submitted to the High Court under Section 374 for confirmation. When a case is so submitted the High Court may examine the evidence and if it thinks fit acquit the accused. Consider what would be the result if an accused person were found guilty in a trial by jury of an offence punish- able under Section 303, Penal Code, and if the Sessions Judge through mistake sentenced the accused to transportation for life, and then, discovering his mistake reported the matter to the High Court. Is the Court bound, to accept the verdict of the jury and sentence the accused to death ?

50. Is the Court entitled to refuse to pass the only legal sentence which can be imposed for such an offence Or is the Court free to treat the matter as though the Sessions Judge had passed a legal Order and had made the necessary reference under Section 374 It seems to me obvious that if the last of these courses can be justified, it ought to be adopted by the Court. Similarly, in eases where the obvious sentence is death if the accused is really guilty, but the accused has been sentenced to transportation for life, the Court ought after issuing a Rule to treat the case as though the Sessions Judge had passed the proper sentence and made a reference under Section 374, if this course can be justified under the provisions of the Code. In my opinion, such a course, theugh unusual can be justified without doing violence to the language of the Code. The question what is the proper sentence in a particular case is a question of law. If the Sessions Judge gives a sentence which is not appropriate, he commits an error of law, which can be corrected in revision. Ordinarily when the Order of a Subordinate Court to be revised, is the final Order in the case, the High Court on revision passes the proper order, when, however, further proceedings have to be taken after the proper Order is passed, the High Court has never hesitated to set aside the Order of the Subordinate Court and direct that Court to proceed according to law. I can see no serious objection to the High Court holding that a sentence other than a sentence of death is inappropriate if the accused is guilty and remanding the ease to the Sessions Judge with a direction to pass that sentence and make a reference under Section 374. This procedure, though admittedly unusual, would in my opinion give effect to the intentions of the Legislature as expressed in the Code of Criminal Procedure. Further, as the passing of the appropriate sentence and the making of a reference under Section 374 is not discretionary, there seems to be no reason why the High Court should not, in suitable cases, act as though the appropriate sentence had been passed and the necessary reference made. If this procedure is not justifiable then the proper procedure would apparently be for the Court to examine the evidence to determine whether sentence of death should be passed, and then, if satisfied from the evidence that the conviction cannot be sustained, refuse to pass sentence of death because the evidence does not justify the verdict of the jury and bring the case to the notice of the Local Government.

51. It is interesting to note that in ('33) 20 A.I.R. 1933 Bom. 153 the Bombay High Court expressed the view that in a Rule for enhancement of sentence to a capital sentence, the Court could acquit if the accused shewed on the facts that he was entitled to acquittal though the learned Judges were prepared to follow the decision in Emperor v. Jorabhai Kisabhai : AIR1926Bom555 . Our answer to the reference should therefore be that in cases where the death sentence is not involved the Court of revision is not authorised to alter or reverse the verdict of a jury unless it is of Opinion that such verdict is erroneous owing to a misdirection by Judge or to a misunderstanding on the part of the jury of the law as laid down by him. But in cases where the death sentence is the proper sentence if the accused is guilty, the Court of revision, on a Rule to enhance the sentence, has all the powers that it would have if the appropriate sentence had been passed by the Sessions Court and a reference made under Section 374 of the Code.

Roxburgh, J.

52. I agree with my learned brother Lodge J.

Akram, J.

53. I agree with my learned brother Lodge J.

Sen, J.

54. The question sent to us for determination has been formulated thus:

In a case such as that with which, we are now dealing in which an accused person has been called upon to show cause why his sentence should not be enhanced to a capital sentence in accordance with the procedure laid down in Section 439, Criminal P.C. has such person a right to contend that the verdict of the jury was based upon an erroneous view of the evidence and the facts of the case?

55. If I may say so, with respect, the question has not been very accurately framed. The point for decision is not whether a person convicted of murder may resist the enhancement of his sentence on the ground that the verdict of the jury is wrong because it is based on an erroneous view of the evidence and the facts of the case. The point is whether he may claim that his conviction be set aside on this ground. I would formulate the question thus: 'When a person convicted of murder and sentenced to transportation for life is called upon to show cause under Section 439 (2), Criminal P.C. why he should not be sentenced to death and he also shows cause against his conviction in the exercise of his right to do so under Section 439 (6) of the aforesaid Code, has he the right, when showing cause against his conviction, to demand that the verdict of the jury be altered, reversed or set aside on the ground that it is wrong on facts although there has been no misdirection by the Judge or misunderstanding by the jury of the law as laid down by the Judge on any other error of law.'?

56. The point involved is a narrow one as it is restricted to the case of a person convicted of murder; but in Order to decide it we must determine a broader question viz., the rights which a person convicted of an offence, has, when he shows cause against his conviction before this Court, in the exercise of the right given to him by Section 439 (6), Criminal P.C. This Court in its appellate jurisdiction has not the power to enhance a sentence. This is emphasised in the provisions of Section 423 (b), Criminal P.C. A sentence, however, may be enhanced by this Court acting in its revisional jurisdiction. When a convicted person is called upon to show cause why his sentence should not be enhanced he is given two rights viz., (1) the right to be heard on the question of enhancement, Section 439 (2); (2) the right to show cause against his conviction, Section 439(6). As such convicted person may claim an acquittal, it is quite obvious that before deciding on the question of enhancement of the sentence the Court must decide whether the conviction can stand in law. The second right must be investigated first. The extent of this right is the matter for our determination. On behalf of the Crown, Mr. Bhattacharjee's contentions, as I have understood them, are as follows:

57. In showing cause against his conviction the accused can show only such cause as he could have shown on an appeal; and in entertaining such cause the Court can exercise only such powers as it has in its appellate jurisdiction. When the trial was by jury, this Court, in dealing with a cause shown under Section 439(6), cannot alter or reverse a verdict of a jury unless such verdict is erroneous by reason of a misdirection of the Judge or a misunderstanding of the law as laid down by the Judge. This Court may also set aside the conviction on any other ground of law which would justify an appellate Court in setting it aside. In short, he argues that the revisional powers of this Court in such a matter are co-extensive and co-terminous with the powers of this e. Court on appeal. He says further that in determining whether the sentence should be enhanced, this Court may, and indeed should, in every ease, whether it be one tried by jury or not, go into the facts and form its own opinion on them. If it is of opinion on the evidence that the accused is not guilty it will not enhance the sentence. In a case not tried by jury it will also acquit the accused; but in a ease tried by jury it is powerless to set aside the conviction unless there is such misdirection by the Judge or such other error of law as would entitle an appellate Court to set aside the verdict of the jury. All it can do in such a case is to refuse to enhance the sentence and if it thinks proper, to draw the attention of Government to the case for action under Section 401, Criminal P.C. recommending a suspension or remission of sentence. He bases his contention on the provisions of sSection 423 and 439 (1), Criminal P.C. His argument is this: Section 423 confers certain powers and imposes certain limitations upon the appellate Court. One of the limitations is contained in Sub-Section (2) of Section 423 which says that the appellate Court shall not alter or reverse a verdict of the jury unless it is erroneous by reason of a misdirection of the Judge or a misunderstanding by the jury of the law as laid down by the Judge. Section 439, Criminal P.C. confers certain powers on this Court in its revisional jurisdiction. Those powers are enumerated in Sub-Section (1) of Section 439 which is as follows:

In the case of any proceeding the record of which has been called for by itself or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of appeal by SSection 423, 426, 427 and 428 or on a Court by Section 338, and may enhance the sentence; and when the Judges composing the Court of revision are equally divided in opinion, the ease shall be disposed of in manner provided by Section 429.

58. This Sub-Section enacts that in dealing with the conviction of a person this Court in revision cannot do anything which an appellate Court could not have done. On behalf of the accused, Mr. Talukdar's contention is this: The powers of this Court on revision are far wider than its powers on appeal. The limitations imposed on this Court, exercising its appellate jurisdiction, will not apply to its revisional jurisdiction. In any case, even if it be held that Section 439 (1) limits the revisional jurisdiction of this Court in certain matters, these limitations are not imposed upon the Court when it hears a cause shown under Section 439 (6), inasmuch as that Sub-Section begins with the phrase ' Notwithstanding anything contained in this Section,' a phrase which excludes the operation of any limitation upon the powers of the Court which Sub-Section (1) may contain. In this view Mr. Talukdar contends that this Court, in hearing a cause shown against a conviction in a proceeding under Section 439 (6), may interfere with the verdict of a jury on a question of fact.

59. The question involved therefore may be put shortly thus: In considering a cause shown against a conviction in accordance with the provisions of Section 439 (6), are the powers of this Court on revision limited to the powers of this Court on appeal The decisions of this Court in Khoda Bux Haji v. Emperor : AIR1934Cal105 and Alef Shaikh v. Emperor ('35) 62 Cal. 952, certainly support the view put forth on behalf of the Crown. I have given the matter my most anxious consideration and after mature thought II feel that I must respectfully dissent from this view. In my opinion this Court, dealing with a cause shown under Section 439 (6) against a conviction, has the power to go into facts in every ease whether tried by jury or not, and to set aside the verdict of a jury on the ground that the appreciation of the evidence by the jury is wrong. It will, of course, give due weight to the opinion of the jury regarding the facts, but after doing so, it has the power to set aside the verdict if it is of opinion that the verdict cannot be supported on the factSection

60. I shall now give my reasons for this view. The powers of a Court of Justice are of a twofold nature: Firstly, it is given power to entertain certain matters and investigate them in a certain manner in Order that justice may be done. Secondly, it is given power to grant certain reliefs by passing particular orders and directions after it has entertained and investigated those matters. The Criminal Procedure Code recognises this distinction and deals with each kind of power separately. So far as the powers of this Court on appeal are concerned, the two main Sections are Section 418 and Section 423. Section 418 deals with the first kind of power arid Section 423 with the second kind. Section 418 is as follows:

(1) An appeal may lie on a matter of fact as well as a matter of law, except where the trial was by jury, in which case the appeal shall lie on a matter of law only.

(2) Notwithstanding anything contained in Sub-Section (1) or in Section 423, Sub-Section (2), when, in case of a trial by jury any person is sentenced to death, any other person convicted in the same trial with the person so sentenced may appeal on a matter of fact as well as a matter of law.

61. It is this Section that gives power to this Court to entertain an appeal on a matter of act as well as of law in all cases except where the trial was by jury, and it is this Section which limits the powers of this Court entertaining an appeal where the trial was by jury to the consideration of an error of law only. I shall now deal with Section 423. It consists of two partSection Section 423 (1) runs as follows:

The appellate Court shall then send for the record of the case, if such record is not already in Court. After perusing such record, and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and, in case of an appeal under Section 417, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may,

(a) in an appeal from an Order of acquittal, re verse such Order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;

(b) in an appeal from a conviction, (1) reverse the finding and sentence, and acquit or discharge the accused, or Order him to be re-tried by a Court of competent jurisdiction subordinate to such appellate Court or committed for trial, or (2) alter the finding, maintaining the sentence, or with or without altering the finding, reduce the sentence, or (3) with or without such reduction and with or without altering the finding, alter the nature of the sentence, but, subject to the provisions of Section 106, Sub-Section (3), not so as to enhance the same;

(e) in an appeal from any other order, alter or reverse such order;

(d) make any amendment or any consequential or incidental Order that may be just or proper.

62. This Sub-Section merely catalogues a list of orders or reliefs which an appellate Court, with powers already defined and circumscribed by Section 418, may pass or grant when disposing of an appeal. These orders may be passed and these reliefs may be granted whether the appeal arises from a case tried by a jury or not. Section 423 (1) does not prescribe one set of orders or reliefs for appeals arising from trials by jury and another set for appeals arising from other forms of trial. There is no such discrimination. After giving a list of the possible orders or reliefs that may be passed or granted by the appellate Court in Sub-Section (1) the Legislature enacted Sub-Section (2) in these terms:

Nothing herein contained shall authorise the Court to alter or reverse the verdict of a jury, unless it is of opinion that such verdict is erroneous owing to a misdirection by the Judge, or to a misunderstanding on the part of the jury of the law as laid down by him.

I would draw attention to the words 'Nothing herein contained shall authorise the Court.' The Sub-Section does not empower the Court to do anything, nor does it limit the Court's powerSection All it does is to explain that the first part of Section 423 does not authorise the Court to do certain things. The reason why the first part of Section 423 does not authorise the doing of these things is to be found in Section 418. Section 423 (2) therefore merely explains Section 423 (1) with reference to the limitations contained in Section 418. It is purely explanatory and is there 'ex abundanti cautela.' What it says in affect is this: Section 418 limits an appeal in a case tried by a jury to a matter of law; therefore any and every erroneous verdict cannot be altered, reversed or set aside; it can only be altered, reversed or set aside if the error is due to a misdirection by the Judge or a misunderstanding of the law by the jury. Even if Section 423 (2) were not there, the appellate Court would still not have the power to set aside a verdict of the jury unless there was an error of law as this limitation on the power of the appellate Court has already been imposed by Section 418.

63. I may point out further that it would be wrong to suppose that Sub-Section (2) of Section 423 prescribes the limits of the power of an appellate Court to interfere with a conviction when the trial was by jury. The appellate Court may set aside an Order of conviction passed in a trial by jury for many reasons other than those mentioned in Section 423 (2). Even when there is no erroneous verdict by reason of any misdirection or misunderstanding, the appellate Court may yet set aside the verdict on other grounds of law, e. g., misjoinder of charges, defects in the empanelling of jurors, failure to examine an accused person under Section 342, Criminal P.C. and various other grounds of law. It seems to me clear that Section 423 does not deal with the first kind of power of the Court of appeal, viz., the power to entertain appeals and to investigate questions of fact or law when entertaining appeals. That is a matter dealt with by Section 418. Section 423 merely prescribes the different reliefs that the appellate Court may grant after entertaining an appeal and investigating matters in the manner prescribed and limited by Section 418.

64. I now turn to consider the powers of this Court on revision; there also the distinction between the two classes of powers is maintained; Section 435 deals with the first class of powers and Section 439 with the second. Section 435 says that this Court may call for the record of any proceeding before any inferior criminal Court situate in the local limits of its jurisdiction

for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or Order recorded or passed and as to the regularity of any proceedings of such inferior Court.

The words used are very wide. The Court may enquire into matters in Order to satisfy itself as regards 'correctness, legality, propriety and regularity.' In satisfying itself whether the Order or sentence is 'legal,' or whether the proceedings have been conducted with 'regularity,' it will consider mainly questions of law. In satisfying itself whether the Order or sentence is 'correct' and 'proper' it will consider mainly questions of fact. This is the scope of this Court's revisional jurisdiction conferred by statute. Some of the reliefs which the High Court on revision may grant and those which it may not grant are mentioned in Section 439; but what the Court may investigate or entertain in Order to determine whether or not it will grant any of these reliefs is not limited in this Section. The scope of the Court's investigation is to be found in Section 435; and there is nothing in that Section or any other Section in the Code which says that in the case of trials by jury this Court in revision will not entertain a question of fact in granting relief. Section 439 (1) says that this Court in revision may

in its discretion exercise any of the powers conferred on a Court of appeal by Sections 423, 426, 427 and 428, etc.

This means that this Court on revision may in its discretion grant any of the reliefs men-tioned in these Sections. Section 439 (1) nowhere says that in granting these reliefs this Court on revision cannot entertain any ground except those which the appellate Court may entertain. As I have tried to show before, Sub-Section (2) of Section 423 is merely explanatory of the effect of Section418 upon Sub-Section (1) of Section 423. As Section 418 is applicable only to appeals and not to revisions, Sub-Section (2) of Section 423 will have no application to revisions. I may in this connexion mention that Section 439 (1) by no means exhausts all the reliefs that this Court on revision may grant. It would be tedious to enumerate the number of other reliefs which this Court on revision may grant and which are not contemplated in any of the Sections 423, 426, 427 and 428, e. g., it may interfere with interlocutory orders of all kinds and set them aside although this may not involve reliefs contemplated in the above Sections; it may quash proceedings on the ground that they are mala fide and constitute an abuse of the process of the Court; it may direct a further inquiry into a complaint dismissed by a Magistrate under Section 203.

65. The powers of the revisional Court are therefore not bounded by Section 439 (1). That Section merely empowers the revisional Court to pass at its discretion any of the orders which an appellate Court may pass under the see tions mentioned therein. It does not limit the powers of this Court to the passing of those orders only; nor does it limit the scope of the Court's investigation. The powers of the revi-sional Court are to be ascertained by reading Section 435 together with Section 439. Section 435 expressly says that the Court may send for, any record of an inferior Court 'to satisfy itself as to the correctness, legality and propriety of a finding, sentence or Order or the regularity of a proceeding.' The matters enumerated in Section 435 which this Court may investigate necessarily include matters of fact and there is no Section corresponding to Section 418 limiting the scope of this investigation regarding cases tried by jury to points of law only. Section 439, in my opinion, merely prescribes some of the reliefs this Court may or may not grant when exercising its revisional powers after investigating matters mentioned in Section 435. My learned brother Khundkar has said that by an unwavering practice in these matters we have precluded ourselves, when exercising our revisional jurisdiction, from setting aside a vordict of the jury except on a point of law. If the statute which gives us our powers has not thus curtailed them we should not, and indeed cannot, by practice, do so. I would resist any unauthorised curtailment of our powers with the same relentlessness whether the attempt comes from without or from within.

66. When no limits are placed by the Legislature on our powers or discretion they should be left untrammelled. For reasons of convenience we may follow a certain practice in the exercise of such powers on discretion, but we must never allow such practice to become an inflexible rule. We must not bind ourselves with chains of our own forging. No practice, however, long and however invariable, can take away anything from what has been given to us by statute. I would say, with respect, that the maxim 'cursus curies est lex curia' which is relied upon by my brother Khundkar for the view that we have curtailed our powers in revision by our practice cannot bo invoked to take away or add to our powers when these powers have been defined by statute. The argument of the Crown is that this Court on revision cannot interfere with the verdict of a jury on a point of fact as the Code of Criminal Procedure by Section 439 (1) has prohibited this Court on revision from interfering with the verdict of a jury on any ground which is not available to this Court on appeal. I would have accepted this view if I could have accepted the Crown's interpretation of Section 439(1), but I must say with respect, that I cannot concur with my brother Khundkar's opinion e that although Section 439 (1) does not fetter this Court in the way suggested by the Crown, the Court is nevertheless powerless to interfere with the verdict of a jury except for an error of law because of our invariable practice. In this connexion I can do no better than quote the observations of Jenkins C. J. in In re an attorney ('14) 1 A.I.R. 1914 Cal 597. at page 457:

When a tribunal, it has been said, is invested by Act of Parliament or by Rules with a discretion, without any indication in the Act or Rules of the grounds upon which the discretion is to be exercised, it is a mistake to lay down any rules with a view to indicating the particular grooves in which the discretion should run, for if the Act or Rules did not fetter the discretion of the Judge why should the Court do so? Gardner v. Jay (1885) 29 Ch. D. 50 at p. 58.), And in the same spirit we find Lindley L. J. declaring 'It appears to me wrong in principle for any Court or Judge to impose fetters on the exercise by themselves or others of powers which are left by law to their discretion in each case as it arises:'36. Saunders a Saunders (1897) L. R. 1897'P. 89 at p. 95.

67. Again in Emperor v. Bankatram Lachiran ('04) 28 Bom. 533. this is what Jenkins C.J. says at page 566:

The powers of the High Court are denned by the Code of Criminal Procedure: and it is there that we must go to learn what its powers are. Section 435 empowers the High Court to call for and examine the record of any proceeding before any criminal Court situate within the local limits of its jurisdiction for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or Order recorded or passed, and as to the regularity of any proceedings of such inferior Court.

Then by Section 439 it is provided that in the case of any proceeding the record of which has been called for by itself or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 195, 423, 426, 427 and 428 or on a Court by Section 338.

The Legislature could not have expressed itself with greater clearness, but it has been suggested that the Courts have imposed on the plain terms of these Sections a gloss which narrows scope of the discretion vested in the High Courts.

If we have been entrusted with the responsibility of a wide discretion, we should be the last to attempt to fetter that discretion, and whenever it is argued that judicial decision has deprived us of the power that the Legislature has given us I recall the words of an eminent English Judge. 'I desire to repeat,' he said 'what I have said before, that this controlling power of the Court is a discretionary power, and it must be exercised with regard to all the circumstances of each particular case, anxious attention being given to the said circumstances which vary greatly. For myself I say emphatically that this discretion ought not to be crystallized as it would become in course of time by one Judge attempting to prescribe definite rules with a view to bind other Judges in the exercise of the discretion, which the Legislature has committed to them. This discretion, like all other judicial discretions, ought as far as practicable to be left untrammelled and free so as to be fairly exercised according to the exigencies of each case.

These weighty words appear to me to breathe the spirit that should guide us in the exercise of our discretionary powers of revision. This may perhaps increase our responsibilities and add to our labours, but no one would shirk the one or grudge the other.

In this case there was a difference of opinion between two Judges. One of them Ashton J. held the view that the High Court, exercising its power of revision under Section 439, Criminal P.C. will not disturb a conviction on the ground that it is wrong on facts. He based his view on the Rule of practice adopted by the Court in dealing with revisions. This revision was from two concurrent findings of facts and Ashton J. held that to interfere with a finding of fact in such a case would virtually amount to giving an accused person the right of a second appeal, Chandavarkar J. held a contrary view and Jenkins C. J. in upholding the decision of Chandavarkar J. and setting aside the conviction, made the above observations. I hold that this Court, on revision, may set aside the verdict of a jury on the ground that it is wrong on the facts, even though the erroneous verdict is not due to any misdirection by the Judge or misunderstanding by the jury of the law as laid down by the Judge and although there is no other error of law. In my opinion, there is nothing in Section 439 (1) which limits our powers in revision to those exercis-able in appeal. Even if this interpretation of Section 432 (1) be not correct, I would still hold that when a convicted person shows cause against his conviction by taking advantage of the provisions of Sub-Section (6) of Section 439, he can ask the Court to set aside the verdict of a jury on the ground that it is wrong on the facts. Sub-Section (6) is as follows:

Notwithstanding anything contained in this Section, any convicted person to whom an opportunity has been given under Sub-Section (2) of showing cause why his sentence should not be enhanced shall, in showing cause, be entitled also to show cause against his conviction.

68. A person whose sentence is sought to be enhanced is given the right to 'show cause against his conviction.' It is not said that he can show cause only on a ground of law when the trial is by jury. He may show cause on any ground. There is no Section corresponding to Section 418, which Section applies in terms only to appealSection If a convicted person is given these extensive rights, this Court hearing the cause shown under Sub-Section (6) must be presumed to have the corresponding extensive powers unless there is some provision curtailing such powers. Conceding, for the sake of argument, that Sub-Section (1) of Section 439, does limit the powers of this Court on revision to the powers given to this Court on appeal in other eases, this limitation would not apply to an investigation under Sub-Section (6) as the Sub-Section begins with the words 'Notwithstanding anything contained in this Section.' This means that if anything in the other parts of the Section could be read as curtailing the right given in this Sub-Section to a convicted person showing cause against his conviction, that part of the Section must be taken as not applying to Sub-Section (6). If therefore there are limitations in Sub-Section (1) of Section 439, they would not apply to persons showing cause under Sub-Section (6). The Crown argued that the words 'notwithstanding etc.,' referred only to Sub-Section (5) and all that it meant was that inspite of Sub-Section (5) a convicted person who had not appealed may show cause against his conviction. I see no reason to limit the application of the words 'notwithstanding anything contained in this Section' to Sub-Section (5) only. If that was intended, nothing could be easier than to say, 'notwithstanding anything contained in Sub-Section (5).' The words g are 'notwithstanding anything contained in this Section.' Anything in any part of the Section which conflicts with Sub-Section (6) is therefore excluded from application to a person showing cause against his conviction. If Sub-Section (1), limits the rights of convicted persons in other revisional applications, it will not limit the rights given by Sub-Section (6) as those rights are given in broad and unlimited terms notwithstanding anything contained in the Section. 13. It was argued on behalf of the Crown that there is no reason why a person found guilty by a jury and showing cause against his conviction by availing himself of the provisions of Section 439 (6) should be in a better position than a person appealing against a verdict of the jury. It is not safe to speculate as to why different rights have been given. We are to gather the intention of a statute by giving the words used their ordinary meaning. We are not to speculate regarding the motives of the legislature. I may however hazard a reason for this difference. In an appeal from a trial by jury the Court has not come to its own finding on facts. It need not decide what facts should be believed and what not. All it has to do is to see whether all the facts have been fully and fairly placed before the jury. When a Court has to decide whether a sentence passed should be enhanced, it must go into facts and decide what facts it should believe and what facts it should not. More often than not it will not have any assistance from the verdict of the jury on these facts as the jury does not give its findings on every set of facts. in decidingthese matters the Court will very often come to a conclusion on facts regarding the guilt or innocence of the accused. If in a case it comes to the conclusion that the verdict of the jury is wrong on facts and is yet unable to set aside the verdict the Court will be in an embarrassing position. It may be that Sub-Section (6) was framed in this manner in Order to prevent the Court being put in this embarrassing position,

69. I would answer the question put to us by (saying that when a person convicted of murder land sentenced to transporation for life shows (cause against his conviction by taking advantage of the provisions of Section 439 (6) he may (demand that the verdict of the jury be altered, reversed or set aside on the ground that it is i wrong on facts even though there has been no 'misdirection by the Judge or misunderstanding by the jury of the law as laid down by the Judge or any other error of law. I would add that a convicted person would have this right not only in cases of murder but in every case.


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