Prinsep and Hill, JJ.
1. In this case the Magistrate sentenced the petitioners to three months' imprisonment. On appeal, this sentence was altered by the Sessions Judge to one month's imprisonment with a fine of Rs. 20, or in default of payment to 15 days' rigorous imprisonment.
2. A rule was granted by us to consider whether this alteration of sentence amounted to an enhancement of the sentence such as was contrary to the terms of Section 423, Code of Criminal Procedure. Our attention has been drawn to the case of Queen-Empress v. Chagan Jagannath (1898) I.L.R., 23 Bom., 439, as well as to a case in the Allahabad High Court, Queen-Empress v. Ishri (1894) I.L.R., 17 All., 67, referred to in that judgment. We find it impossible to lay down any general rule to determine what is or is not, an enhancement of sentence, when only a portion of a sentence is altered to a punishment of a lesser degree of severity as in the case before us. Mr. Boy, who appears in support of the rule, contends that an Appellate Court is not competent, under Section 423, to pass a sentence such as is now under consideration; that is to say, an Appellate Court cannot modify a substantially sentence of imprisonment by directing that, for a portion of that terms of imprisonment, a sentence of fine shall be substituted. He contends that to 'reduce a sentence,' as provided for by Section 423, Clause (b), is to lessen the particular punishment in the sentence, and that to 'alter the nature of the sentence' is to pass sentence of a lesser degree of punishment--that is, to alter the sentence as a whole; that an Appellate Court can convert a sentence of imprisonment into one of fine, but that no power is given to alter the nature of the sentence in part so as to leave the nature of the unaltered part unchanged.
3. We cannot accept this interpretation of the meaning of an alteration of Sentence. As we read Section 423, Clause (b)(3), there is nothing to prevent an Appellate Court from altering a portion of a sentence under appeal so long as it does not thereby enhance the same. Such an alteration would as a matter of fact be both a reduction and alteration of the original sentence, and it would not necessarily be an enhancement. What does or does not amount to an enhancement depends, in our opinion, on the terms of the alteration. We are not prepared to accept the principle on which the learned Judge of the Bombay High Court proceeded, for it may be that the fine imposed in substitution for a portion of a sentence of imprisonment may be so heavy as to make the altered sentence really an enhancement of the original sentence. It is also undesirable, in determining such a matter, that the alternative term of imprisonment imposed on default should be taken into consideration. That is not the real sentence, but a sentence that, under certain circumstances, may be made the sentence. Moreover the law (section 70, Penal Code) does not release a person who has undergone such an alternative sentence of imprisonment from liability to pay the fine. It is sufficient for us in this case to hold that such an alteration of sentence is not necessarily an enhancement. In each case it would be for the Court of Revision, which is called upon to determine whether there has been an enhancement of sentence, to consider what is the effect of the alteration. In the present instance, we think that the substitution of a sentence of fine of 20 rupees for two months' rigorous imprisonment cannot be regarded as an enhancement of sentence. The Sessions Judge certainly did not regard his order as an enhancement of the sentence, and we have no doubt that the petitioners themselves would not consent to receive the original sentence in substitution of that which has been passed. The rule is therefore discharged.