Horace Owen Compton Beasley, Kt., C.J.
1. This is an appeal by the first accused in S.C. No. 41 of 1935 in the Sessions Court of Coimbatore. The appellant was convicted of an offence pnnishable under Section 392, Indian Penal Code, namely, robbery, as a result of the unanimous verdict of the jury. He was sentenced to rigorous imprionment for two years by the learned Sessions Judge.
2. Five other accused were charged with the appellant under Section 120-B read with Section 384, Indian Penal Code and the appellant was also charged with accused 1 to 4 and the sixth accused with extortion, Section 384, Indian Penal Code and with the same accused with dacoity, Section 395, Indian Penal Code. The appellant was acquitted on the other charges by the learned Sessions Judge and all the other accused were acquitted on all the charges.
3. Briefly put, the prosecution case was that the Zamindar of Ramupatnam was engaged in an illicit amour with the appellant's wife, Satyabama. She wrote to him passionate letters and he replied in terms that left no doubt as to his relations with her. On the 28th December, 1934, the appellant, having come into possession of the letters written by the Zamindar to his wife who was the fifth accused in the case being charged with the other accused of being engaged in the conspiracy to extort money from the Zamindar, decoyed the latter to his estate in the Nilgiris ostensibly to settle the sale of his Shandypet to a prospective purchaser but really in order that he might confront him there with the proof of his relations with his wife, the fifth accused. The Zamindar spent the night of the twenty eighth at the appellant's estate at Benhope and whilst he was asleep his loaded revolver was taken by the appellant from under his pillow. Next morning the Zamindar was taken for a walk round the estate and to a place some distance away from the main road. Armed coolies had been posted there and on arrival at the spot the Zamindar was suddenly confronted by the appellant with an accusation that he had been intimate with his wife and was shown the letters written by him to Satyabama. The first accused played the part of an outraged husband and pulling out the Zamindars's revolver from his pocket threatened to shoot him then and there. The second accused who was present pleaded with the first accused to spare the Zamindar's life and then led the first accused away pretending to induce the first accused to spare the Zamindar if the latter would pay substantial compensation. After some discussion in which the second accused acted as the mediator between the Zamindar and the first accused, Rs. 25,000 was fixed as the amount of compensation. The case for the Crown is that the Zamindar had no choice in the matter and that he thought his life was at stake as he was surrounded and beset by the friends of the first accused and by armed employees of the first accused. The place was a lonely one and he had no friend present except his own cousin. He was therefore forced to agree to execute promissory notes in favour of the first accused for the amount before stated. The case for the Crown is that the first accused had made all arrangements before-hand and a cooly brought a case in which were writing materials. The second accused wrote two promissory notes for Rs. 25,000 which the Zamindar signed. The latter was also made to execute a document in which he admitted his guilty relations with Satyabama and stated that he had agreed to pay the first accused Rs. 25,000 as compensation. Whilst these documents were being executed, the first accused sent the fourth accused to Coimbatore in his car. The first accused had previously warned three money-lending firms in Coimbatore that the Zamindar would require a loan of Rs. 30,000 towards the end of December. The three money lenders who were friends of the first accused had agreed to lend that sum to the Zamindar and to send the money when the accused sent for it. The amount required from the money lenders on the 29th December was Rs. 27,000. During this time the Zamindar was kept a prisoner in the house. On the arrival of the money promissory notes were executed by the Zamindar in favour of the money lenders and the money brought was paid over to the first acccused. Between the 29th December and 10th January the Zamindar was negotiating for the return of his love letters by the first accused and raising loans to repay the bankers who had lent him the money on the 29th December. The first accused was insisting on the money lenders being paid before he parted with the Zamindar's love letters. On January 10th the police stepped in although the Zamindar had not complained to the police of being robbed and as the result of the intervention of the police the appellant and the other accused were charged with the criminal offences:
The defence raised on behalf of the appellant was that the inspector of police made a criminal offence of an immoral story by introducing the revolver, armed coolies, etc., and that what the appellant did was merely to demand Rs. 25,000 the estimated value to him of Satyabama his wife. His defence was thst the Zamindar arranged to come to Benhope on the night of the 28th December in order to settle negotiations for the sale of Shandypet to one G.D. Naidu of Coimbatore, and for that purpose the appellant was to meet the Zarnindar at Benhope with G.D. Naidu. That evening, however, he discovered before he left Coimbatore that the Zamindar had grossly abused his friendship with him and was carrying on a guilty relationship with Satyabama, his second wife. On arrival at Benhope he waited for the Zamindar and that same night taxed him with his misconduct and told him that he was in possession of certain love-letters which he had written to Satyabama. The Zamindar admitted that he had been engaged in an illicit intrigue with her and asked him not to give publicity to the fact or resort to proceedings in Court and stated that if he agreed to that he would think the matter over that night and propose an arrangement for compromising the affair the following morning. Next morning after a discussion the Zamindar agreed to pay him Rs. 25,000 as compensation for the injury. The figure of Rs. 25,000 was arrived at on the basis of restoring to the appellant the money he had spent on Satyabama in the shape of properties, presents and jewels. Shortly before this, the Zamindar who was in need of money had asked the appellant to arrange for a loan of Rs. 30,000 with certain bankers at Coimbatore which loan was to be availed of in the event of the negotiations for the sale of Shandypet falling through. As G.D. Naidu did not turn up that night as promised it was impossible to consider the question of further negotiations towards the sale. The Zamindar suggested that out of the money so arranged by way of loan he would pay Rs. 25,000, to the appellant, and in order to complete the compromise asked the appellant to send some one to Coimbatore to obtain funds from the bankers. The Zamindar asked him to obtain Rs. 27,000, and accordingly a messenger was sent to Coimbatore for that purpose. In consideration of this payment the Zamindar insisted and the appellant agreed to hand over all the letters that had passed between the Zamindar and Satyabama stipulating at the same time that that would be done on the appellant's return, to Coimbatore as most of the letters were there. The appellant denied any threat to shoot the Zamindar or that he at any time was in possession of the Zamindar's revolver or caused him to be intimidated by his coolies or confined him in his bangalow in any manner.
4. The learned Sessions Judge took a definite view of the case as his charge to the jury shows. That charge was very strongly favourable to the defence and extremely hostile to the case for the Crown. Indeed he expressed his own opinion very strongly against the Zamindar's evidence his story and the case for the Crown and left the jury in no doubt whatever about his views of the case. We may pause here and say that a trial judge is entitled to express his opinion to a jury freely and emphatically when it seems to him to be necessary to do so provided that he warns the jury that his opinion is in no way binding upon them and that it is the jury's opinion on the facts of the case alone which matters. This warning the learned Sessions judge frequently gave to the jury. The jury, however as they were quite entitled to do, accepted the zamindar's evidence and unanimously found the appellant guilty of robbery. The learned Sessions Judge accepted the verdict. The first accused now appeals: and as he has been convicted by a jury, the provisions of Section 423, Criminal Procedure Code apply to this case. Therefore, the Appellate Court by reason of Sub-section (2) is not authorised to alter or reverse the verdict of the 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. The Appellate Court accordingly cannot go into the facts of the case except to see whether there has been any misdirection by by the judge. Mr. Grant for the appellant has found himself in an exceedingly difficult position in view of the fact that the learned Sessions Judge's charge to the jury was so entirely favourable to the appellant as he has from the first frankly admitted. He however, contended that the Appellate Court is entitled to go into the facts of the case and reverse the findings of the jury because a criminal revision case has been filed by the Crown for enhancement of sentence calling upon the High Court to exercise its powers of revision under Section 439, Criminal Procedure Code. By virtue of Sub-section (2) of that section no order under the 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 and under Sub-section (6) such convicted person in showing cause shall be entitled also to show cause against his conviction. Under Sub-section (1) the High Court may in its discretion exercise any of the powers conferred on a Court of appeal by inter alia Section 423 of the Code. Mr. Grant argued that because of the opening words of Sub-section (6), namely, 'notwithstanding anything contained in this section' which includes Section 423, a convicted person is entitled in showing cause against his conviction to go into the facts of the case even though he has been convicted as a result of the verdict of a jury. Sub-section (2) of Section 423 is imperative and Mr. Grant's contention, therefore, is that by implication Sub-section (6) of Section 439, Criminal Procedure Code overrides the express terms of the former section. We find it impossible to accept such an extreme contention, and had it been intended by the legislature to override the provisions of an earlier section, such an intention would have been expressly stated. In our view, a convicted person in showing cause against his conviction under Sub-section (6) of Section 439 of the Code has only the same right as he has when he comes before the Court by way of an appeal under Section 423. The same view has been taken in the only reported case in which the same point was considered, namely, Khodabux Haji v. Emperor I.L.R.(1933) 61 Cal. 6. It was there argued that the words 'notwithstanding anything contained in this section' obliterated the plain language of Sub-section (1) of Section 439 in which is incorporated amongst others Section 423. The Calcutta High Court, however, declined - and in our opinion quite rightly - to accept that argument and held that in all cases where the question of enhancement of sentence is before the Court the position is just the same as if the matter had come before the Court by way of appeal or revision at the instance of the convicted person himself. It is indeed difficult to find any reason why the position should be otherwise merely because an enhancement of sentence is sought for; and as we have already said, the words 'Notwithstanding anything contained in this section' cannot by implication override the express and imperative provisions of an earlier section. We are therefore, against the appellant's contention upon this point.
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5. [After examining the evidence and the address to the Jury by the Sessions Judge their Lordships proceeded.]
6. We have to consider what it was that the Zamindar was principally concerned about at that time. His pressing need was to get back the evidence of his illicit intrigue with Satyabama, namely, his love-letters. Whilst those remained in the possession of the appellant he was in danger of exposure or still further demands upon his pocket. His object was to keep the matter secret although he had to make certain disclosures to the panchayatdars whose aid he wanted in the matter. Is it likely that a man desirous of keeping such a matter secret would make a criminal charge against the person who had extorted the money? That would be the very best way of making the matter public to all. It is the knowledge that black-mailed persons are unwilling to expose themselves to such publicity that renders blackmail easier of performance. The fact that the Zamindar did not complain of criminal conduct is put very heavily against him by the learned Sessions Judge without the qualification to which we have already referred; and it is quite possible that the jury whose foreman is described as a person of considerable intelligence may have thought these matters to which we have referred of some importance.
7. We must also refer to another matter. This appears in paragraph 20 of the learned Sessions Judge's charge to the jury:
On his own showing the first accused's behaviour was morally most reprehensible. He was prepared to make money out of his wife's dishonour (It may be she is only his mistress but if she is his wife his conduct is not better but worse).
8. The fact that the woman may only have been the mistress and not the wife has a very important bearing on the charge of extortion, which of course was not one to be tried by the jury but by the learned Sessions Judge, and in view of the appellant's defence if the woman was only his mistress there was no defence at all to the charge of extortion.
9. In our view, this appeal cannot succeed and must be dismissed. With regard to the enhancement of sentence, we can see no reason for increasing it. The criminal revision case must therefore also be dismissed.