LexSAWAL DAS versus THE STATE OF BIHAR
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' A B SAWAL DAS v. THE STATE OF BIHAR August 7, 1974 607 [M. H. BEG A1'U P. N. BHAGWATI, JJ.] Practice-Conviction-Sentence not passed by trial Court-Whether appellate· Court could pass sentence. Penal Code-S. 201. The applicant, was convicted and sentenced for an offence under ss. 302/34. I. 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 C s. 302 simpliciter but maintained his conviction under s. 201. D E F G H On appeal, affirming the conviction under s. 201, I. P. C. this Court passed an' order of sentence under s. 201, I. 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 under 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 po?'er to pass a sentence is a power which can and ought to be exercised by all courts wh1c~, 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 (l)(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 conviction is affirmed in appeal b~t no sentence had been awarded by the trial magistrate the award of a senten~ 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. [609E; 6t0A-C] Vithoda & A11r. v. The State of Bombay, [1955]2 SCR 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 sentence could not be concurrent for the whole period of the sentence under s. 302 I. P. C. When that sentence was set 3.side the period of sentence under s. 201, I.P.C. had to be fixed as a necessary consequence. [610D·El 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 SUPREME COURT REPORTS [19~] 1 S.C.R. BEG J.-This is an application for review of an order pa>sed by us -011 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 per- sons were also charged under Section 201 Indian Penal C~de for -disposing of the body of Chanda Devi after the murder knowing that ·she bad been murdered. The Trial Court convicted the applicaut Sawal Das, his father .Jamuna Prasad, and his step-mother Kalawati fer the cffence 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 I. P. C. but no separate sen- tences were inposed upon them for this offence "In view of the fact that they had been sentenced under Sections 304/34 I. 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 Prarnd the father of the applicant to the extent that it set aside his conviction under Sections 302/34 I. P. C., but it maintained his cc·nviction under Section 201 I. P. C. and sentenced him to three years' rigorous imprirnnment. It converted the conviction of the applicant under Section 302/34 I. P. C. to a conviction under Section 302 I. P
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