Full Judgment Text
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PETITIONER:
SAWAL DAS
Vs.
RESPONDENT:
THE STATE OF BIHAR
DATE OF JUDGMENT07/08/1974
BENCH:
BEG, M. HAMEEDULLAH
BENCH:
BEG, M. HAMEEDULLAH
BHAGWATI, P.N.
CITATION:
1974 AIR 2276 1975 SCR (2) 607
1975 SCC (3) 156
ACT:
Practice--Conviction--Sentence not passed by trial
Court--Whether appellate Court could pass sentence.
Penal Code-S. 201.
HEADNOTE:
The applicant, was convicted and sentenced for an offence
under ss. 302/34, 1. P. C. In respect of his conviction
under s. 201, I. P. C. no separate sentence was imposed by
the trial court. The High Court converted the conviction to
one under s. 302 simpliciter but maintained his conviction
under s. 201.
On appeal, affirming the conviction under s. 201, 1. P. C.
this Court passed an: order of sentence under s. 201, 1. P.
C. In review application it was contended that since no
appeal had been filed by the State against the failure of
the trial court to pass a separate sentence under s. 201, I.
P. C. or against the failure of the High Court to specify
the sentence this Court could not pass any sentence at all
now tinder this section.
Dismissing the Review Application,
Held : (1) The consequential order imposing a sentence,
which by inadvertence was not passed by the High Court,
could- be passed by this Court. The power to pass a
sentence is a power which can and ought to be exercised by
all courts which, having jurisdiction to decide whether the
accused is guilty or not, find that he is.. This power is
preserved to the appellate court experessly by s. 423
(1)(d), Cr. P.C. which enacts that it could "make any
amendment or consequential or incidental order that may be
just or proper". When a convictionis affirmed in appeal but
no sentence had been awarded by the trial magistrate the
award of a sentence is consequential on and incidental to
the affirmance of theconviction and it is a just and
proper order to be passed under the law. [609E; 610A-C]
Vithoda & Anr. v. The State of Bombay, [1955] 2SCR 1049 @
1054-55, followed..
(2) The order passed showed that the applicant was not only
convicted under
S. 201, I.P.C. but his sentence for the offence was ordered
to run concurrently with the life sentence. Only the period
of sentence was not fixed. That was plainly erroneous. The
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sentence could not be concurrent for the whole period of the
sentence under s. 302 I. P. C. When that sentence was set
aside the period of’ sentence under s. 201, I.P.C. had to be
fixed as a necessary consequence. [610 D-E]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Review Petition (Crl.)
No.19 of 1974.
Application for review-of the Court’s Judgment dated the 9th
January, 1974 in.
Criminal Appeal No. 70 of 1972.
Appeal by Special Leave from the Judgment and Order dated
the 16th September, 1971 of the Patna High Court at Patna in
Criminal Appeal No. 90 of 1968
R. Jethmalani, S. N. Misra and S.S. Jauhar for the
Petitioner.
R. C. Prasad, for the respondent.
The Judgment of the Court was delivered by
608
BEG J.-This is an application for review Of an order passed
by us on 19-1-1974 on a Criminal Appeal by special leave.
The applicant had been tried, together with his father
Jamuna Prasad and step-mother Kalawati Devi, and convicted
for the murder of his wife Chanda Devi, who, it was alleged,
had frequent quarrels with Kalawati. The applicant and his
father and certain other persons were also charged under
Section 201 Indian Penal Code for disposing of the body of
Chanda Devi after the murder knowing that .she bad been
murdered.
The Trial Court convicted the applicant Sawal Das, his
father JAmuna Prasad, and his step-mother Kalawati for the
offence of murder under Section 302 read with Section 34 I.
P. C. and sentenced each of them to rigorous imprisonment
for life. The applicant and his father were also convicted
under Section 201 1. P. C. but no separate sentences were
iMposed uPon them for this offence "In view of the fact that
they had been sentenced under Sections 304/34 1. P. C."
The High Court, on an appeal by convicted persons, set aside
the convictions of Kalawati for both offences and ordered
her to be set at liberty. It also allowed the appeal of
Jamuna Prasad the father of the applicant to the extent that
it set aside his conviction under Sections 302/34 1. P. C.,
but it maintained his conviction under Section 201 I. P. C.
and sentenced him to three years’ rigorous imprisonment. It
converted the conviction of the applicant under Section
302/34 I. P. C. to a conviction under Section 302 I. P. C.
simpliciter and maintained the sentence of life imprisonment
in the following terms:
"The appeal of appellant Sawal Das is
dismissed maintaining his conviction and
sentence under Section 201, Indian Penal Code
and also maintaining the sentence upon him for
the offence of murder but altering the
conviction from Section 302/ 34, to 302,
Indian Penal Code simpliciter. The sentences
will run concurrently as already decided by
the Court below".
Apparantly, the High Court was under the erroneous
impression that the applicant Sawal Das had been not only
convicted but also sentenced by the Trial Court under
Section 302 1. P. C. as well as under ’Section 201 I. P. C.
The Trial Court, as already observed, had neither passed a
separate sentence under Section 201 I. P. C. upon the appli-
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cant nor indicated what it could be. It overlooked that,
according to law, a separate sentence ought to be passed for
each offence even if sentences are made concurrent because a
Court may as it has in this case, set aside a conviction so
that the need for a separate sentence must necessarily arise
in such an event.
This Court dismissed the application of applicant’s father
Jamuna Prasad for leave to appeal against his conviction and
sentence under ’Section 201 I. P. C. It also refused leave
to the applicant to contest any point beyond the correctness
of his conviction and sentence under :Section 302 1. P. C.
This Court, after having considered the uncertainties,
arising from the facts found, as to whether all the three
persons accused of murder or only one of then, and, if so,
which of
609
them, committed. acts which could fasten the liablility for
murder upon him or her sing y, came to the conclusion that
the applicant must get the benefit of that uncertainty as
the charge under Section 34 1. P. C. had failed. It could
not be definitely said whether the applicant had actually
taken part, and, if so, what that war,, in’ murdering his
wife Chanda Devi. Nevertheless, this Court was convinced
that a murder of Chanda Devi had been committed after the’
applicant, his father, and his step-mother were seen
following her into a room in their house. No one had said
what actually took place inside it.
As a necessary consequence of setting aside the conviction
of the applicant under Section 302 I.P.C. while affirming
this conviction under Section 201 I.P.C., as no special
leave to appeal was granted against this conviction,this
Court had to disposed the case by parking some order on the
sentence under Section 201 I.P.C. Indeed, there was some
argument in the course of hearing of the appeal as to what
would be the appropriate sentence in this state of affairs.
The applicant has now come up on a technical point. It is
that, as no appeal was filed at all by the State against the
failure of the Trial Court to pass a separate sentence under
Section 201 I.P.C., or against the failure of the High Court
to specify the sentence on the erroneous assumption that
some sentence had actually been passed for an offence under
Section 201 I.P.C. upon the applicant, this Court could not
pass any sentence at all now upon the applicant under
Section 201 I.P.C. Learned Counsel for the applicant brought
to our notice Jayaram Vithoba & Anr. v. The State of
Bambay(1) which was a case under the Bombay Prevention of
Gambling Act. This. Court had laid down there (at p. 1054-
55):
"When a person is tried for an offence and
convicted, it is the duty of the Court to
impose on him such sentence, as is prescribed
therefor. The law does not envisage a person
being convicted for an offence without a
sentence being imposed therefor. When the
Trial Magistrate convicted the first appellant
under Section 5, it was plainly his duty to
have imposed a sentence. Having imposed a
sentence under section 4 (a) he obviously
considered that there was no need to impose a
like sentence under section 5 and to direct
that both the sentences should run
concurrently. But, in strictness, such an
order was the proper one to be passed. The
appellants then took the matter in revision to
the High Court, and contended that their
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conviction under section 5 was bad. The High
Court went into the question on the merits,
and found them guilty under that section. It
was the duty of the High Court, to impose a
sentence under section 5, and that is
precisely what it has done. The power to pass
a sentence under those circumstances is
derived from the law which enacts that on
conviction a sentence shall be imposed
(1) [1955] 2 SCR. 1049 @ 1054-55.
610
on the accused, and that is a power which can
and ought to be exercised by all the Courts
which having jurisdiction to decide whether
the accused is guilty or not find that he is.
We are of opinion that this power is preserved
to the appellate court ,expressly by section
423 (1) (d) which enacts that it can make any
amendment or- any consequential or incidental
order that may be just or proper’. When a
conviction is affirmed in appeal but no
sentence had been awarded by the trial
Magistrate, the award of a sentence is
consequential on and incidental to the
affirmance of the conviction, and it is a just
and proper order to be passed under the law.
We are unable to agree with the
view .expressed in Ibrahim v. Emperor (AIR
1940 Bom. 129) that such an order would be an
enhancement of the sentence".
We think that what was held in the case cited above applies
to the case before us also. It shows that a consequential
order, in the circumstances set out above, imposing a
sentence which, by an inadvertent, was not passed by the
High Court, could be passed by this Court.
The contention of the applicant that, as no particular
sentence was imposed by the High Court or the Trial Court,
the applicant must be deemed not to have been sentenced at
all is also incorrect. The orders passed show that the
applicant was not only convicted under Section 201 I.P.C.
but his sentence for the offence was ordered to run
concurrently with the life sentence. Only the period of the
sentence was not fixed. This was plainly erroneous. The
sentence could not be concurrent for the whole period of the
sentence under Section 302 I.P.C. Therefore, when that
sentence was set aside, the period of the sentence under
Section 201 I.P.C. had to be fixed as a necessary
consequence.
It was also urged before us that we had not heard the
applicant on the question of sentence to be imposed under
Section 201 I.P.C. We find, from our judgment, that this was
done. However, we have heard the applicant again on this
review application after issuing notice to the State. We do
not find sufficient grounds for revising the sentence of 7
years rigorous imprisonment and a fine of Rs. 1,000/-, ,and,
in default of payment of fine imprisonment for a further
term .of six months. This petition is hereby dismissed.
Review Petition dismissed.
P. B. R.
611