1. Accused No. 1 Jnanendra Nath Ghosh alias Jnan Ghoshwas convicted under Section 493, Indian Penal Code, and sentenced to be detained till the rising of the Court and to pay a fine of Rs. 500 or in default to undergo rigorous imprisonment for six months and the accused No. 2 was convicted under Sections 4 93-109, Indian Penal Code and sentenced to pay a fine of Rs. 50, or in default to undergo rigorous imprisonment for three months. They were convicted and sentenced as aforesaid by an Additional Sessions Judge of the 24-Parganas on the 5th June, 1928. The Superintendent and Remembrancer of Legal Affairs then moved this Court for enhancement of the sentences passed upon the said two accused persons and originally the Rule was issued as against both of them to show cause why their sentences should not be enhanced Subsequently it was mentioned to the Court that the accused No. 2 could not be found and upon that the Rule as against accused No. 1 only was allowed to be proceeded with. It has now been heard by us in so far as it concerns that accused person.
2. I do not consider it necessary to set out the facts alleged on behalf of the prosecution upon which the charges on which the accused persons were committed to the Court of Session were framed. It is sufficient to say that the sentences passed on the accused persons are on the face of them far too lenient. At the same time I find it impossible to enhance the sentences upon the materials such as they are on the record. To explain what I mean I shall have to set out a few facts.
3. The order-sheet of the Court of the Judge shows that on the charges against the two accused being read out and explained to them they pleaded 'guilty' and they were convicted on their own plea. As reason for the sentence that he passed the Judge has recorded: 'In consideration of the inability of the prosecution to produce the girl who according to the Public Prosecutor is the only important witness in the case and the circumstances of the case, I deal with them leniently.' One thing is clear beyond doubt and that is this that without the girl's evidence the case could not go on, but beyond that I am not at all clear as to what actually took place. It may be that though the girl was not available, the prosecution were ready to go on with the trial by adducing the deposition of the girl taken before the Committing Magistrate as evidence at the trial after proving the facts necessary to be established in order to bring the case under Section 33 of the Evidence Act; or it may be that the prosecution were not in a position to proceed with the trial at all, because the girl was absent. On this point there is no affidavit on either side, and I am not at all sure that it is not one of those cases in which the accused pleads guilty to the charge in the hope of being leniently dealt with, the Public-Prosecutor not pressing for severe sentences. All this, however, is only of minor importance.
4. Now, as far as I could understand the arguments adduced on behalf of the Crown they are to the effect that the plea of 'guilty' should be taken to conclude the accused altogether so that taking the facts alleged against the accused by the prosecution we should consider what is the proper sentence to be passed. This, in my opinion, is a wholly mistaken view of the situation. The plea of 'guilty' is a plea to the charge and does not necessarily amount to a confession of all the facts alleged. The Court is not bound to, but it may, convict the accused on his plea vide Section 271(2), Criminal Procedure Code). The plea operates as a bar, in certain cases, to the preferring of an appeal except as to the extent and legality of the sentence (vide Section 412, Criminal Procedure Code). By analogy with and also as a necessary consequence of the bar as regards appeals, a plea of guilty will perhaps also stand in the accused's way in the matter of a revision which he may seek for. But when called upon to show cause why his sentence should not be enhanced, the accused has the right to show cause against his conviction Section 439(6), Criminal Procedure Code). This sub-section does not make any exception as regards the case of a person who has been convicted on his own plea. I do not find anything in the words of this sub-section which would warrant an interpretation that the accused while showing cause against his conviction is to be held down to his plea of 'guilty'. The same result would follow if we consider the true nature of a proceeding for enhancement of sentence. In such a proceeding the Crown takes up the position that the sentence originally passed is to be vacated and a new and proper sentence is to be passed: it cannot be that a second sentence in addition to the original one is to be passed; because for one offence the law can punish the accused but once. When the Court in such a proceeding is considering what is the proper sentence to be passed the accused is in the position of a person who has pleaded guilty and convicted but not yet sentenced. Under the English Law at such a stage the accused is entitled to withdraw his plea of guilty and enter a plea of 'not guilty' though be cannot do so after sentence; R. v. Sell (1840) 9 Car. & P. 346 : 113 E.R. 863, R. v. Clouter (1859) 8 Cox. C.C. 237, R. v. Plummer (1902) 2 K.B. 339 : 71 L.J.K.B. 805 : 66 J.P. 647 : 86 L.T. 836 : 18 T.L.R. 659 : 51 W.R. 137 : 20 Cox. C.C. 243. The technicalities of a plea under the English procedure may not apply in all their details to the system here, but this is a broad principle which, so long as there is nothing in our Code militating against it, is, in my judgment, applicable to this country as well. The accused No. 1 in the present case in showing cause through his Advocate says that his conviction is not right which means that his Client is not guilty.
5. Nextly, as has been repeatedly said in numerous decisions in Indian Courts, enhancement of sentence is a very serious thing and so in considering the question whether a sentence should be enhanced or not the Court must know all the facts and circumstances of the case. Uncross-examined testimony of the prosecution witnesses given in the Court of the Committing Magistrate can hardly be taken to suffice for the purpose. Such evidence was not the evidence at the trial, and indeed the learned Advocate for the accused No. 8 has asked us not to treat the depositions as evidence.
6. For all these reasons I am of opinion that the proper order to pass is to make the Rule absolute in the following way, namely, to set aside the conviction of the accused No. 1 and to direct that notwithstanding his plea he should be regularly tried, and if convicted properly sentenced.
7. In this case a Rule was issued upon the accused (now opposite party) to show cause why the sentence passed upon him should not be enhanced.
8. The facts are shortly these: The opposite party Jnan Ghose, and a Nepali woman named Padam Kumari were tried before the Additional Sessions Judge of the 24-Pargannas and a Jury on charges against the former under Section 493, Indian Penal Code, and against the latter under Section 493/109, Indian Penal Code. Padam Kumari is, it is said, in Nepal and notice could not be served on her.
9. The case for the prosecution was that the accused Padam Kumari had brought from Nepal a girl named Chitra Kumari aged about 14 years on the representation that she would obtain for her a wealthy and, suitable husband; that after keeping the girl with her for some time in Calcutta she introduced the accused Jnan Ghose as a wealthy suitor, and that thereafter these two persons took the girl to a house at Salkea where a sham marriage ceremony was gone through, that in fact there was no real ceremony of marriage, and that certain things were done, e.g., taking a photograph, exchange of garlands, and singing by the parties, so as to deceive the girl into the belief that marriage had been performed. Thereafter sexual intercourse is alleged to have taken place between Jnan Ghose and the girl Chitra.
10. At the Sessions trial both the accused pleaded guilty to the charges and the Additional Sessions Judge accordingly convicted them thereon and sentenced the accused Jnan Ghose to be detained till the rising of the Court and to pay a fine of Rs. 500 or in default to six months' rigorous imprisonment, while the accused Padam Kumari was sentenced to be detained till the rising of the Court and to pay a fine of Rs. 50, or in default to rigorous imprisonment for three months. Thereafter the petitioner, the Superintendent and Remembrancer of Legal Affairs, applied for and obtained this Rule.
11. The question is whether any case has been made out for interference. There can be no doubt in my opinion that the sentences inflicted (we are concerned, however, now with the case of Jnan Ghose only) are wholly inadequate for an offence of this description. There are one or two matters, however, which require consideration. The first of there is as to the effect of Sub-section 6 of Section 439, Criminal Procedure Code where there is a plea of guilty. That sub-section reads 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.'
12. In my opinion this proviso, for it is in the nature of a proviso, can have no application where there is a plea of guilty, since that, as it seems to me, concludes the matter, and it is not possible to go behind such a plea. The only circumstance in which it would, I think, be open to an accused to go behind the plea and re-open the matter of his conviction would be where he could show that there was some mistake in recording the plea, and that he did not in fact plead guilty. No allegation of the kind is made here. That being so we must, I think, proceed on the basis that it was properly recorded, and means what it says, viz., that the accused acknowledged his guilt.
13. In this connection reference may be made to Section 412 of the Code which lays down that where an accused person has pleaded guilty and has been convicted by a Court of Session or any Presidency Magistrate or Magistrate of the First Class on such plea there shall be no appeal except as to the extent or legality of the sentence. In view of this section it cannot, I think, be held that an accused who has pleaded guilty is entitled under Sub-section 6 of Section 439 to 'show cause against his conviction.' Those words are, as it seems to me, applicable only where the accused has been convicted on the evidence, and in that case and that case only he is entitled to show that the conviction is wrong either upon the facts, or through some error of law.
14. In the circumstances of the present case the petitioner having pleaded guilty the only question which, in my judgment, arises is whether the sentence is adequate or not. Speaking for myself I should not be disposed to interfere if the sentence inflicted could be considered to be in any way appropriate. It appears to me, however, to be altogether inadequate. In my opinion, therefore, the Rule should be made absolute and I would set aside the sentence and direct that in lieu thereof the accused Jnan Ghose should suffer rigorous imprisonment for three years while maintaining the sentence of fine.
15. On account of this difference of opinion the case came before Mr. Justice Buckland who delivered the following judgment