Decided on September 27,1973

Sk. Barkat Appellant


S.K. Ray, J. - (1.) THIS case has come before the Division Bench on a reference being made to it by the learned Chief Justice, who heard it in the first instance. The order of reference runs as follows: In this case in ground No. 2 it has been stated that the notice of enhancement was never a comprehensive notice and it was of a limited character. This contention appears to have been based on a Single Judge decision of this Court reported in Ramchandra Agarwal and Ors. v. State : 39 (1973) C.L.T. 915. Let this case be heard by a Division Bench on the question whether notice of enhancement was of a limited nature and to examine the correctness of Ramchandra Agarwal and Ors. v. State : 39 (1973) C.L.T. 915. After the Division Bench gives its opinion, the case would come back to the learned Single Judge who originally disposed of Cr. Rev No. 121 of 1973. The case be put up before the Division Bench for hearing next week.
(2.) THE facts giving rise to the aforesaid Misc. Case may now be briefly stated. The Petitioner was prosecuted for an Offence under Section 47(a) of the Bihar and Orissa Excise Act, 1915, being in illegal possession of 66.550 litres of outs till liquor in 121 bottles which were seized by the Excise staff on 20 -11 -1972. He was convicted and sentenced to pay a fine of Rs. 10/ -, in default, to undergo S.I. for 7 days, by Shri R.S. Misra, Magistrate II Class, Cuttack. The State field Cr. Rev. No. 121/73 before this Court on the ground that the sentence awarded by the Magistrate was grossly inadequate. In this Criminal Revision a notice for enhancement was issued to the Petitioner, upon receipt of which he appeared and showed cause. Ultimately the Hon'ble Chief Justice allowed this Criminal Revision by his order dated 30 -7 -1973 and enhanced the sentence by imposing a sentence of one month S.I. and a fine of Rs. 500/ - in default, to undergo a further imprisonment of one month. Thereafter, the Petitioner filed an application for review of the aforesaid order of enhancement, upon which the present Misc. Case, under consideration, was registered. Two questions arise for determination firstly, whether the notice of enhancement issued in Cr. Rev. No. 121/73 was not of comprehensive nature, but was only of a limited character. Secondly, whether the case reported in Ramchandra Agarwal and Ors. v. State : 39 (1973) C.L.T. 915, has been rightly decided in so far as it has laid down that this Court has unlimited jurisdiction under Section 561A of Code of Criminal Procedure to review its own order both on question of facts and as well as on points of law.
(3.) THE answer to the first question does not create any difficulty at all. The sole prayer in Cr. Rev. No. 121/73 was to enhance the sentence awarded by the Magistrate. By order dated 13 -3 -1973 this Court passed the following order: Issue notice on the question of admission and hearing. A copy of the notice served on the Petitioner has been produced by the Petitioner under affidavit. It states as follows: Take notice that an application, a copy whereof is annexed herewith has been made to this Court by the above -named Petitioner, and you are hereby directed to show cause on 18 -5 -1973 why the application should not be admitted; granted and sentence inflicted on you by Shri R.S. Misra, Magistrate II Class (J) Cuttack on 5 -12 -1973 in 2(a) C.C. 480 of 1972 may not be enhanced. It is clear that the notice of enhancement issued to the Petitioner was unqualified and comprehensive and contained no limitation whatsoever, and there is absolutely no scope for an argument that it was of limited character. Therefore, in my view there can be no iota of controversy that the notice of enhancement, in question, was a comprehensive one and not of limited character.;

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