LexSHANKAR KERBA JADHAV & ORS. versus STATE OF MAHARASHTRA
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
A
D
c
0
E
/
F
G
H
SHANKAR KERBA JADHA V & ORS.
•V.
STATE OF MAHARASHTRA
September 8, 196,9
227
[S. M. SiKRl, G. K. MlfTER AND P. JAGANMOHAN REDDY, JJ.]
Code· of Cri1ni1u1J Prvc'i!tlure, ss. 417 c111c/ 423 l l) (a)-Magistrate
con\:icJing
acc11sed-SeJ.\'f011.~ 1Judge
acquitting _1'1e111-Appeat to
High
Court by State 1111dt•r .\'.
417~ of Code-Poll'ers of High Court in respect
of .se111ence
0 to be pa.\·sed b)' it if it rt!1·ersc•s order of ucquittcd--Can paj:<;
any sentence 11·/iic/i 111agi.strate hhnse/f could have pc1ssed- Powers not
fh11i1t•d ro the sentt•nct' ··-which trial coun ucttu1lly passed.
The appellants "'er~ charged With offences punishable under s. 147,
447 and 325
read with s.
149
of the
Indian
Penal
Code in con-
nection with an incident in which they \Vere :.11leged to have
committed
house trespass into the cornpound of a school anJ injured a teacher.
The
Magistrate convicted them an<l sentencCd them 'on various counts to im-
prisonment and fine.
The sentences nnt..I
fines
\Vere
Jo\ver - than- the-
maximum that the. Magistrate was cmpo1,veret..I to impose under the Code
of Criminal Proce<lurt!.
Jn appeal the Sessions Judge acquitted the appel-
lants.
The State appealed to the High Court under s. 417 Cr. P.C. The
High~ Court reversed the orders of the Se)sions Judge anc!. considering the
nature of the acts committed hy the appellunts impose<l higher sentences
and fines on' them but they \vere still not hiJ.?.ner than what the Magistrate
could himself have imposed.
Jn uppeal to this Court against the
High
Court's judgfiicnt it \Vas contended that the Hip:h Court actin,g under s.
423 (I) (a) is not en1powere<l to impose hi!!her ~entences than the lower
court had passed and in anv case not \Vithout a notice~to sho\v cause against
enhancement.
It wa'i also url!Cd that the High Court could under s. 423 ( 1) (a) pass a
sentenc'.! "according to Jaw" and thus it did not enjoy the powers which
it otherwise might have exercised under s. 31 ( 1) of the Code unde.r
which a Hi,gh Court may pass "any sentence authorised by law".
HELD : (i) The difference in the wording of s. 3l(I) ands. 23(1)
(a) is a matter of no moment. The expression 'authorised by Jaw' means
sanctioned by law while 'according to law' means jn conformity \vith
law.
The question to be answered.i in either case remains the same i.e.
what is the sentence the High Court is cn1powe1ed to impose after it sets
aside an order of acquittal when the same is preceded by a sentence of
an inferior .court. [232 H]
(ii) An appeal is a creature of statute and the power and jurisdiction
of the appellate court must be circumscribed by the words of the statute~
At the same time a coiirt of aooeal is a 'court of error' and its normal
function is to correct the decision appealed from if ne.oessary. and its
jurisdiction should be co~xtensive With that of the trial court.
It cannot
and ought not to do something which the trial court was not competent
to do.
There does not seem to be any 'fetter on its power to do what
the trial court could do.
Jn this case the trial Magistrate was comoetent
to pass a sentence o'f imprisonment up to two years and the High Court's
jurisdiction hearing an appeal would therefore be limited to a sentence
up to that period and no more. [233 B]
228
SUPREME COURT REPORTS
( 1970] 2 S.C.R.
(iii) Although the Sessions Judge in hearing the appeal against the
appellants' conviction could not enhance the sentence the High Court in
hearing appeal against the order of acquittal by the Sessions Judge could
do so.
When the order of the Magistrate. was set aside by the Sessions
Judge the matter became one at large and the High Court hearing an
appeal therefrom \Vas empowered under s. 423ll) (a) to pass a sentence
according to law. It could therefore pa~s any sentence which the Magis~
trate trying the case was empowered to pass and the. High Court in the
present case did not exceed that limit. [238 A-CJ
The acceptance of the appellant's
contention
would lead
to
the
strange result that in an appeal against acquittal by the Magistrate the
High Court could pass any sentence which the Magistrate was empowered
to do but in an appeal against a judgment of a Sessions Judge setting
aside a conviction by the Magistrate the High ('ourt's power would be
limited to restoring the sentence which the Magistrate had actually passed.
Further the Sessions Judg~ would have bExcerpt shown. Read the full judgment & AI analysis in Lexace.