N.J. Wadia, J.
1. The accused Inderchand Bachraj Marwadi was convicted by the First Class Magistrate, Western Division, East Khandesh, of offences under Sections 209 and 196 of the Indian Penal Code and was sentenced to suffer eight months' rigorous imprisonment and a fine of Rs. 500, in default two months' further imprisonment under each offence. The sentences of imprisonment were ordered to be consecutive. In appeal the Sessions Judge of East Khandesh reduced the sentences to three months' rigorous imprisonment and a fine of Rs. 500, in default two months' further imprisonment under each offence, the sentences of imprisonment to be concurrent. Against this decision the accused filed an application in revision to this Court. This application was heard by a single Judge,. Mr. Justice Kania, during the vacation, and was summarily dismissed on April 30, 1934. After this decision the Government have filed the present application in revision asking that the sentences passed upon the accused should be enhanced.
2. Mr. Jayakar for the accused contends that under Section 439, Sub-section (6), of the Criminal Procedure Code, the accused is entitled, at the hearing of the application for enhancement of sentence, to show cause against his-conviction also. Under Rule 2, Sub-clause (XXII), of the High Court Rules, Appellate Side, a single Judge during the vacation can dispose of emergent criminal revision applications, and the judgment of Mr. Justice Kania dismissing the revision application filed by the accused was, therefore, a valid order of dismissal. If the accused is now allowed to show cause against the conviction this bench will in effect be rehearing a matter already finally decided by this Court.
3. In Emperor v. Mangal Naran (1924) 27 Bom. L.R. 355 Macleod C.J., in discussing whether appeals filed by an accused and notices for enhancement of sentence should be heard together, observed that in his view the former practice of this Court of first disposing of the appeal and then considering whether notices to enhance should issue was correct. He added (p. 358):
If, after an appeal has been heard on its merits and dismissed, a notice to enhance the sentence is issued, the accused has still the right to show cause against his conviction, but any attempt to set aside the conviction would not have much chance of success.
4. The question whether, when the appeal of an accused person against. his conviction and sentence has been dismissed by a division bench of the High Court, and a notice to enhance the sentence is issued on an application on behalf of Government, the accused can, at the hearing of the application for enhancement of sentence, be re-heard on the merits of his conviction by another division bench, was considered in two subsequent cases-Emperor v. Jorobhai : (1926)28BOMLR1051 and Emperor v. Koya Partab : AIR1930Bom593 . In both cases it was decided that it was not open to the accused to go again into the merits and to show cause against the conviction. The remarks of Macleod C. J. in Emperor v. Mangal Naran were considered by Fawcett and Madgavkar JJ. in Emperor v. Jordbhai to be obiter dicta and not binding. The ground on which the decisions in Emperor v. Jordbhai and Emperor v. Koya Partab were based was that under Section 430 of the Criminal Procedure Code judgments and orders passed by an appellate Court upon appeal are final except in certain cases therein mentioned. It is contended by Mr, Jayakar that those decisions do not govern the present case, because they were cases in which appeals filed by the accused had been dismissed, whereas in the present case it is only a revision application filed by the accused which has been dismissed. The contention is that Section 430 of the Criminal Procedure Code, which gives finality to judgments of appellate Courts, does not deal with judgments in revision applications, and that the latter, therefore, have not the same finality as judgments of appellate Courts. Although there is no case of this High Court in which the ratio decidendi in Emperor v. Jorabhai and Emperor v. Koya Partab has been applied to decisions of the High Court on revision applications, there are two decisions of the Lahore High Court in which the same principle has been applied to such applications. In Crown v. Sher (1927) I.L.R. 8 Lah. 521 a petition had been presented by the accused for revision of his conviction and sentence. It was dismissed by the High Court and the Crown then presented a revision application for enhancement of the sentence. It was held that, owing to the inherent incapacity of one Judge of a High Court to reconsider the decision of another (whether arrived at on an appeal or on revision), the accused was no longer entitled under Section 439, Sub-section (6), of the Criminal Procedure Code, to re-open the question of his guilt in the face of such previous finding by the High Court. The same view was taken in The Crown v. Dhanna Lal ILR (1928) Lah. 241.
5. It has been contended by Mr. Jayakar that in hearing an application by the Crown for enhancement: of sentence after an appeal or revision application by the accused against his conviction and sentence has already been dismissed by the High Court, the principle of finality of judgments of the High Court, on which the rulings in Emperor v. Jorabhai and Emperor v. Koya Partab and the two Lahore decisions in Crown v. Sher and The Crown v. Dhanna Lai are based, is also violated, since it must be presumed that when the High Court dismisses the accused's appeal or revision application against his conviction it considers his sentence adequate and confirms it. It is argued that if, in spite of the principle of finality, the Crown is rallowed to re-open the question of adequacy of sentence, there is no reason why the accused should not be allowed to re-open the question of the correctness of the conviction as under Section 439(6) he is allowed to do. If this view is accepted the decisions in Emperor v. Jorabhai, Emperor v. Koya Partab, Crown v. Sher, and The Crown v. Dhanna Lai, must all be held to be wrong. I am not prepared to admit this contention. What the previous judgment of the High Court in revision decided was that there was no ground for setting aside the conviction or reducing the sentence. The question, whether the sentence should be enhanced, was not before the High Court and was not decided, and if this question can be afterwards raised, as it can be under Section 439, there is no reason why the High Court should not consider it. In doing so the High Court would not be reopening a matter which it had already decided ; whereas in allowing an accused to show cause against his conviction the High Court would undoubtedly be reconsidering what it had already decided.
6. I am of opinion, with respect, that the view taken in the two Lahore decisions, which follow the view taken by this High Court in Emperor v. Jorabhai, is correct. Even though Section 430 of the Criminal Procedure Code does not apply to judgments in revision applications, the principle of finality of judgments there laid down must, as has been pointed out in the two Lahore, decisions, apply to judgments in revision applications also. Under Section 369 of the Criminal Procedure Code a judgment of a High Court cannot be altered or reviewed except as provided by the Code or by the Letters Patent of the High Court. Section 369 was amended in 1923, but the amendment has not made any change in the powers of the High Court in this respect. It has been held in a large number of cases Queen-Empress v. C.P. Fox ILR (1885) 10 Bom. 176 . In the matter of Gibbons (1886) Cal. 42 . Queen-Empress v. Durga Charan I.L.R. (1885) All. 672 and Kunhammad Haji, In re I.L.R (1922) Mad. 382 that the High Court has no power under Section 369 of the Criminal Procedure Code to review an order dismissing an application for revision. It is true that Section 439, Sub-section (6), expressly gives an accused person, upon whom a notice has been served to show cause why his sentence should not be enhanced, a right to show cause also against his conviction ; but, as has been pointed out by Beaumont C.J. in Emperor v. Koya Partab, and by Fawcett J. in Emperor v. Jorabhai, the words used in Section 439(6) 'nothwithstanding anything contained in this section' show that Sub-section (6) of Section 439 was primarily intended to operate as an exception to what is otherwise laid down or implied in Sub-section (5) of Section 439, which says that 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. Sub-section (6) of Section 439 cannot, in my opinion, therefore, give to an accused person a right to be heard against his conviction if such a right is in conflict with other provisions of the Code. Under Section 369 of the Criminal Procedure Code this bench will have no power to alter the decision of Mr. Justice Kania dismissing the revision application filed by the accused. I am, therefore, of opinion that the accused is not entitled to show cause against his conviction.
7. I will deal now with the question of sentence. We have been taken very carefully through the record of the case by Mr. Jayakar in order to explain the circumstances under which the offences were committed. The record shows that the accused had kept rough accounts or tippans in which the Rs. 50 paid by Sukdeo were shown, while in the fair accounts, extracts of which were filed in Court along with the plaint, this item did not appear. The offences of which the accused was convicted were undoubtedly serious and deserved a somewhat heavier sentence than that awarded by the Sessions Judge. The reason which the learned Sessions Judge has given for reducing the sentences is also most inadequate and unconvincing. He has reduced the sentences on the ground of the accused's 'extreme old age.' The accused has given his age as forty-nine. This was certainly not such an age as to justify reduction of sentences. But the power of enhancing a sentence is not one which this Court exercises in every case in which the sentence passed is inadequate. It has been frequently stated that the mere fact that the High Court would itself, if it had been trying the case, have passed a heavier sentence than that which the trial Court has passed, is no reason for enhancing the sentence. This Court will interfere only where the sentence passed is manifestly and grossly inadequate. The accused in this case is a man of some position doing business on a large scale. The proceedings which terminated in the Sessions Court were pending against him for two years. Taking these facts into consideration, I do not think that the sentence of three months' rigorous imprisonment on each charge and a fine of Rs. 1,000 passed by the Sessions Judge can be considered as grossly inadequate. Although, therefore, I think that the reason which the learned Sessions Judge has given for reducing the sentence is very inadequate, and the sentence which he has passed errs on the side of leniency, I do not think that the case is a fit one for enhancing the sentence.
Divativa, J.
8. I concur. With regard to the point of law urged by the learned Counsel for the accused as to his right to challenge the conviction in this application by the Government for enhancement of sentence, he has contended that Section 439(6) of the Criminal Procedure Code is itself an exception to Sections 430 and 369 of the Code, and that the right of Government to apply for enhancing the sentence by way of a revisional application is co-extensive with the right of the accused to ask the High Court to go into the merits, and that, therefore, although the accused might have unsuccessfully preferred either an appeal or revisional application to the High Court against the conviction, he is still entitled to invite this Court to go into the merits of the case, on the ground that under the words of Sub-section (6) he is entitled to show cause against his conviction at the time when the High Court goes into the question as to whether the sentence should be enhanced or not. The learned Counsel has also argued that the two decisions of our High Court, viz., Emperor v. Jorabhai : (1926)28BOMLR1051 and Emperor v. Koya Partab : AIR1930Bom593 have not been correctly decided because it has not been considered in any of those cases that Sub-section (6) of Section 439 is itself an exception to Section 430. His alternative argument is that, even assuming that those two cases are correctly decided, they were decisions only relating to appeal and that this Court can still go into the question in the case of a revisional application in which case Section 430 would not apply as that section is specifically limited to the case of an appeal. The last argument is that Section 369 of the Criminal Procedure Code cannot come in the way of his challenging the conviction in this revision petition because that section saves any contrary provisions in the Code and that Section 439(6) is, according to him, such a provision contemplated by the section.
9. On a careful consideration of this argument, I am of opinion that it is against the scheme of the Code, and that this Court cannot go into the merits of the case in this revisional application, if the accused's revision petition has been formerly dismissed by this Court, and the ground on which I put my view is contained in Section 439 itself. Sub-section (1) of Section 439 gives power to the High Court to enhance the sentence, and Sub-section (1) of that section says that no order under, Section 439 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. Then Sub-section (5) says that where, under the Criminal Procedure Code, an appeal lay and no appeal was brought, no proceedings by way of revision should be entertained at the instance of the party who could have appealed. But then follows Sub-section (6) which says:
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.
10. Now, the important words are ' Notwithstanding anything contained in this section ', and this was so enacted because Sub-section (5) says that if the accused had a right of appeal against his conviction but did not prefer it, he cannot apply to the High Court in revision. Sub-section (6) makes an exception to that provision and says that although the accused might not have appealed to the higher Court against his conviction, if the matter comes up in revision before the High Court in an application by the Government for enhancement of the sentence, the accused is still entitled to have his conviction considered by the High Court before it considered the case for enhancement. Therefore, the exception which is enacted by this sub-section is an exception to Sub-section (5) of that section, and not an exception to any other section of the Criminal Procedure Code. It only goes to the length of giving this latitude to the accused that the Court which has the power to enhance his sentence should have considered the propriety of his conviction on the merits, but it does not follow, therefore, that if the accused had already unsuccessfully exercised his right of appeal or revision, to the High Court, in a subsequent application by the Government for enhancement of sentence he was still entitled to ask the High Court to go once more into the merits of the case and even to set aside the conviction, which the same Court had previously confirmed, either in appeal or in a revision petition. Therefore, looking to the scheme of this section, I do not think it gives the right to an accused person of a second attempt to ask this Court to go into the merits of his case.
11. As to the argument that Section 369 expressly saves any contrary provisions in the Code, I do not think Section 439 can be said to be any such provision. If that section had, by express words, given to the accused the right of challenging the conviction again, even though his appeal or revisional application had been decided, then it can be argued that such a right is not taken away by Section 369. But as I read. Section 439, I do not see how, in spite of the dismissal of the accused's appeal or revisional petition, he can still ask the High Court to go into the merits once more. I do not think, therefore, that the two authorities of this Court relating to appeals have been incorrectly decided, in spite of certain observations of Sir Norman Macleod by way of obiter dicta in the case of Emperor v. Mangal Naran (1924) 27 Bom. L.R. 355 in the accused's favour, and I may go further and say that if the accused has no right in an appeal to ask this Court to go once more into the merits of the case, he would still have less right in a revision petition. The revisional jurisdiction of this Court is an extraordinary jurisdiction, and this Court in revision interferes in its discretion if it finds that it is necessary to do so in the interests of justice, and it cannot be said that though by virtue of Section 430 of the Criminal Procedure Code the accused is not entitled to ask this Court to go into the merits after the dismissal of his appeal by this Court, he can still ask the Court to treat its decision in a revisional application as not final, and either by way of review of that decision or by way of revision, go once more into the merits of the case. Therefore, in my opinion, the same principle applies here also, and the decisions in Crown v. Sher I.L.R(1927) Lah. 521 and The Crown v. Dhanna Lal I.L.R(1928) Lah. 241 correctly interpret the law on this point.
12. I recognise that on account of this result there is a somewhat anomalous position so far as the accused is concerned, and that anomalous position has been recognised to a certain extent by this Court in Emperor v. Babu : (1934)36BOMLR382 , where it is stated that where the High Court itself wants to enhance the sentence, in order that the accused may have the right to challenge his conviction before the same bench which is hearing either the appeal or the application for enhancement, it is proper that the application for enhancement should be heard before the appeal is finally decided, so that the accused might be heard at the very time when the question of enhancement is before the Court. But that is possible only in a case where the High Court itself wants to enhance the sentence and gives notice to the accused and not so in a case where Government approaches this Court by way of a revisional petition as it is entitled to do under Sub-section (2) of Section 439, because, as has happened in this case, Government might, come at any time within six months after the decision in the lower Court,, and in the meanwhile the accused might have come to this Court and his application might have been rejected. That may result in this that the conviction may be confirmed by one bench or a single Judge as might happen in a particular case, and the application for enhancement may be heard by another bench. But, so far as the provisions of the section are concerned, whatever may be the anomaly in this procedure, I do not think, that inconvenience or hardship to the accused should lead us to construe Section 439 of the Criminal Procedure Code in a manner which, according to my view, was not intended by the legislature.
13. I, therefore, agree that in this revision petition, it is not competent to-the accused to ask this Court to go into the merits and reverse the conviction.
14. The only question, then, that remains is, as to whether the sentence given by the Sessions Judge is adequate or not. We have gone through the whole of the record, and the learned Counsel for the accused has offered his criticism on practically the whole record, and, looking to the position of the accused and the circumstances of this case, I think the sentence that is awarded to him by the Sessions Judge, viz., rigorous imprisonment for three months and an aggregate fine of Rs. 1,000,, cannot be regarded as extremely inadequate, though not for the reason given by the Sessions Judge. The accused was involved in this prosecution for the last two years, and has presumably undergone a good deal of expense, and looking also to his position that he is a shroff doing a large amount of business, I do not think that it can be said that the sentence of three-months' rigorous imprisonment with a fine of Rs. 1,000 would not be deterrent in his case. I, therefore, agree that it is not necessary for us to interfere with the sentence imposed on him.