LexJAYARAM VITHOBA AND ANOTHER versus THE STATE OF BOMBAY.
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2S.C.R. · SUPREME COURT REPORTS 1049 section 342 contemplates an examination in court, and the practice of filing statements is to be depre- cated. But thar_ is not a ground for interference, un- less prejudice is established. And it is nothing un- usual for the accused to prefer filing statements m- stead of answering questions under section 342, lest they should suffer by inadvertent admissions or by damaging statements. As no prejudice has been shown, this contention also must be rejected. In the result, the appeal is dismissed. JAYARAM VITHOBA AND ANOTHER ti. THE STATE OF BOMBAY. [V1v1AN BosF.. VENKATARAMA AYYAR and CttANDRA- SEKHARA AIYAR JJ.l Code of Criminal Procedure (Act V of 1898), s. 423(1)(b) and (J), s. 439-Powers of Appellate Court-High Court's powers of revi- sion-Conviction by the trial Court but no sentence-High Court CM- ftrming conviction and awarding sentence-Legality-Bombay Preven- tion of Gambling Act (Bombay Act IV of 11)87), ss. 4(a), 5. The first appellant was prosecut."-1 under s. 5 of the Bombay Prevention of Gambling Act (Bombay Act IV of 1887) for being present in a gaming house for the purposes of gaming and was, in addition, charged under s. 4( a) of the Act for keeping a gaming house. The Presidency Magistrate, ':"ho tried the case, found him guilty under s. 4(a) and sentenced him to three months' rigorous imprison- ment. He also tound him guilty under s. 5 but awarded no sepa- rate sentence under that section. In revision, the High Court set aside the conviction under s. 4(a), but confirmed that under s. 5 and awarded a sentence of th.-ee months' rigorous imprisonment under that section. It was contended for the first appellant that the High Court had no power under s. 423( I) (b) of the Code of Criminal Pro- cedure to impose any sentence under s. 5 of the Act when no such sentence had been awarded by the Magistrate and that, in any event, the award of such a sentence amounted to an enhancement and was, in con~equence, ille,;al, as no notice had been issued there- for, a< rrquired by law. Held, that though s. 423(l)(b) of the Code of Criminal Proce- dure w:is not applicable to the case, the High Court had power to pass ~he sentence under s. 423(I)(d). The law does not envhage a person being convicted for an 1955 T ilkeshwar Sin:h and others v. Th• Stale of Bihar Venkatarama Ayyar J. 1955 Dec em/Hr 13, 1955 J•yar11m Vilhoba and anoth1r The Slate •f BrJmbay 1050 SUPREME COURT REPORTS [1955] offence without a sentence being imposed therefor, and the award of :ii. sentence by the High Court was only consequentia) on and inci~ dental to the affirmancc of the conviction, and it was a just and proper order to be passed under the law, within the meaning of s. 423(l)(d) of the.Code of Criminal Procedure. ·Such a sentence cannot amount to an enhancement as it was awarded only for the first time in appeal. Even if it were to be regarded as an enhancement, the order of the High Court could not be held to be bad for want of notice under s. 439(2), as the fim appellant had an opportunity of showing cause against the convic- tion and enhancement, and, in any event, no prejudice had resulted to him by reason of the ab~ence of a formal notice under the section~ Ibrahim v. Emperor (A.LR. 1940 Born. 129), Superintendent and Remembrancer of Legal Affairs v. Hossein Ali (A.LR. 1938 Cal. 439} and Pradip Chaudhry v. Emperor (A.LR. 1946 Pat. 235), d~ approved. CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 75 of 1954. Appeal by Special Leave from the Judgment and Order dated the 24th July 1953 of the Bombay High Court i'n Criminal Revision Application No. 669 of 1953 arising out of the Judgment and Order dated the 29th June 1953 of the Court of Presidency Magistrate, 9th Court at Bandra, Bombay 111 Case No. 11872/73/P of 1952. P. K. Chatterjee, for the appellants. N. S . .J3indra, (P. G. Gokhale, with him) for the respondent. 1955. December 13. The Judgment of the Court was delivered by VENKATARAMA AYYAI<. J.-The first appellant was at the relevant date, in possession of room No. 10 in House No. 334, Bazar Road, Bandra, Bombay. On information that this room was being used as a gaming house, Mr. Bhatt, Sub-Inspector of Police, raided it on 19-9-1952, and fc11nd the two appellants and four others in possession of gaming instruments. All of them were prosecuted und
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