U.J.S. CHOPRA versus STATE OF BOMBAY

Citation: [1955] 2 S.C.R. 94 · Decided: 25-03-1955 · Supreme Court of India · Bench: SUDHI RANJAN DAS · Disposal: Appeal(s) allowed

Cited by 8 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

fl)~ 
N. Satyt.JM1ho11 
v. 
f(. Subramanyan 
and othtrs 
Sinhs J. 
1955 
March 25 
94 
SUPREME COURT REPORTS 
[l 955] 
a service is not an essential function of a sovereign 
sta·te. It cannot be rainsaid that the Government in 
the Postal Department is rendering a very useful ser-
vice 
and 
that the appellant has by his 
contract 
with the Government undertaken to render that kind 
of service on a specified route. The present case is a 
straightforward illustration of the kind of contract 
contemplated by section 7(d) of the 
Act. 
At 
all 
material times the appellant has been directly con-
cerned, for his own benefit, in the contract of carry-
ing mail bags and postal articles entered into by him 
with the Government in the Postal Department. 
For the reasons aforesaid we have not the least 
hesitation in holding that the conclusions arrived at 
by the Tribunal are entirely correct. 
The appeal is 
accordingly dismissed with costs. 
A ppeaf dismiu('(f. 
U..T.S. CHOPRA 
v. 
STATE OF BOMBAY. 
[S. R. OAS, BHAGWATI and IMAM JJ.] 
Criminal Procedure Code, 1898 (Act V of 1898), s. 439(1)(2)!6) 
-Appellant convicted by Magistrate-His appeal to High ·Court 
dismissed summarily-After summary dismissal 
of 
that 
appeal 
Stat.J Government filed revision application to High Court for en-
hancernent of sentence-Notice issued to appellant to show cause 
against enhanrnment under s. 439(2)-Whether appellant entitled to 
show cause ai;ainst his conviction under s. 439!6) of Code of Cri-
minal Procedure. 
The appellant in this appeal was convicted by the Presidency 
Magistrate, Bombay, of an offence under s. 66(b) of the Bombay 
Prohibition Act (Act XXV of 1949) and sentenced to undergo im-
prisonment till the rising of the court and to pay a fine of Rs. 250 
or in defaulr to undergo rigorous imprisonment for one month. He 
preferred an appeal to the Hi~h Court at Bombay, which was sum-
marily dismissed. After the dismissal of that appeal, the State of 
Bombay made a revision application to the High Court praying for 
enhancement of the sentence. Notice was issued to the appellant 
under s. 439(2) of the Code of Criminal Procedure to show cause 
against enhancement. 
I 
~ 
-
2 s.c.R. 
SUPREME COURT REPORTS 
95 
l9SS 
U.J.~. Chdp-a 
.v. 
Held that the summary dismissal of the appeal preferred by the 
appellant did not preclude him from taking advantage of the provi-
sions of s. 439(6) of the Code of Criminal Procedure and showing 
cause against his conviction when he was subsequently called upon 
to show cause why the sentence imposed on him should not be en-
Slale of Bombay 
hanced. 
Per DAS J.-Sub-section (6) of section 439 of the Code of 
Criminal Procedure confers a new and a valuable right on the ac-
cused. The language used in sub-section (6) does not, in terms, 
place any fetter on the right conferre~ _by it on the accused. This 
new right is not expressed to be co!1dmoned or c~n~rolled by a~y­
thing that may have happened pnor to the rev1s10n apphcanon 
under sub-section ( 1) for enhancement of sentence. Therefore, when-
ever there is an application for enhancement of sentence, ·a notice 
must issue under sub-section (2) to the accused person to show cause 
and whenever such notice is issued, the accused person must, under 
sub-section (6), be given an opportunity, in showing cause against 
enhancement, also to show cause against his convictiop. 
It is not correct to say that sections 421, 435 & 439 of the Code 
give the court a discretion not to decide the appeal or revision 
brought before it. The discretion conferred on the High Court does 
not authorise it to say that it will not look at the appeal or revision. 
The Court's bounden duty is to look into the appeal or revision and 
dedde it, although in the process of arriving at its decision it has a 
very wide discretion. 
There is no reason for holding that there is a merger or replace-
ment of the Judgment of the trial Court into or by the Judgment of 
the High Court only when the appeal or revision is heard on notice 
to the respondent and either allowed wholly or partially or dis-
missed but not when it is heard without notice to the respondent and 
dismissed summarily; for this purpose it makes no difference whe-
ther the dismissal is summary or otherwise, and there is a judgment 
of the High Court in all the three cases. The only difference in 
substance is that in the first two cases the judgment is final qua both 
parties while in the third case, i.e., when an 

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