EMPEROR Vs. BISHWANATH

JUDGEMENT

(1.) This is an application on behalf of the Crown for enhancement of sentence passed on Bishwanath by the learned Assistant Sessions Judge of Allahabad in a case in which Bishwanath was committed to his Court to take his trial for an offence under Section 19(f), Arms Act. The trial was held with the aid of jury, who returned a unanimous verdict of guilty. The police received information to the effect that Bishwanath would be passing on an ekka on a certain day on the Canning Road. They took the precaution of securing the presence of two Magistrates, one stipendiary and the other honorary, at the time when Bishwanath was expected to drive on the Canning Road. Accordingly a party consisting of two police officers and two Magistrates lay in wait at a convenient spot on the Canning Road. Bishwanath was noticed approaching on an ekka, which was stopped by the police, and a search of his person was made in the presence of the Magistrates. A revolver and a few cartridges were found concealed in the folds of his dhoti. He was taken in custody and prosecuted for the offence of being in possession of an unlicensed revolver. The learned Assistant Sessions Judge sentenced him to one year's rigorous imprisonment under Section 19(f), Arms Act. He appealed to the Court of the learned Sessions-Judge, Allahabad, who upheld the conviction and sentence. The Local Government has moved this Court for enhancement of sentence. The learned Government advocate has argued before us that in case of a weapon like a revolver or pistol the sentence passed by the trial Judge was wholly inadequate. The learned Counsel for Bishwanath claimed a right to open the case on facts and offered to show that the conviction itself was not justified by the evidence produced in the case. He relies on Section 439(6), Criminal P.C., which provides: Notwithstanding anything contained in this section, any convicted person, to whom an opportunity has been given under Sub-section (2) of showing cause why his sentence should not be enhanced, shall, in showing cause, be entitled also to show cause against his conviction.

(2.) It is argued that the right to show cause against conviction is comprehensive enough to include a right to reopen the case on evidence and impugn the verdict of the jury. We are of opinion that the rule quoted above should be read with other provisions contained in the Criminal P. C., specially Section 423(2), which lays down: Nothing herein contained shall authorise the Court to alter or reverse the verdict of a jury, unless it is of opinion that such verdict is erroneous owing to a misdirection by the Judge, or to a misunderstanding on the part of the jury of the law as laid down by him.

(3.) Section 418 of the same Code limits the right of appeal in cases of convictions based on verdicts of jury to matters of law only. We are clearly of opinion that Section 439(6), Criminal P.C., entitled the person who has been called upon to show cause why his sentence should not be enhanced to show cause against his conviction only so far as Section 423(2), Criminal P.C., allows. The combined effect of Section 439(6) and Section 423(2) is to entitle the accused to question the conviction by showing that the Judge misdirected the jury or that the jury misunderstood the law laid down by the Judge in his charge. To hold that Section 439(6) confers an unlimited right of impugning the conviction would be to introduce the anomaly that a person convicted on the verdict of a jury can question the conviction only within the narrow limits laid down in Section 423(2), but if he has to show cause against a motion for enhancement of sentence, his right to question his conviction is very materially enlarged. We do not think that this was the intention of the Legislature, nor do we think that there is anything in Section 439(6) read with other provisions of the Criminal Procedure Code which justifies the view contended for by the learned Counsel for Bishwanath. Reliance is placed in this connection on Emperor V/s. Bansgopal Singh Cri. Revn. No. 523 of 1930 decided by a Division Bench of this Court. It is true that in that case the learned Judges considered the evidence and examined the propriety of conviction, though the trial was with the aid of jury. We find, however, that the question which has been directly raised before us was not raised in that case.