Queen-Empress vs Lachmi Kant

Aikman, J.—This case has very properly been reported to this Court by the learned Sessions Judge of Gorakhpur. The following are the facts. One Lachmi Kant was convicted by a Magistrate of the second class of the offence of voluntarily causing hurt, and sentenced under the provisions of Section 323 of the Indian Penal Code to pay a fine of Rs. 50, or in default to undergo two months'' simple imprisonment. Lachmi Kant appealed to the District Magistrate, who upheld the conviction, but altered the sentence of fine to one of six months'' rigorous imprisonment. The District Magistrate endeavours to defend his action by stating that all that he aid was to change the "form" of punishment. There cannot be the slightest doubt that the action of the District Magistrate was in contravention of the provision contained in Section 423(b)(3) of the Code of Criminal Procedure, which provides that "an Appellate Court may alter the nature of the sentence, but not so as to enhance the same." I have no hesitation in holding that the alteration made by the District Magistrate was in this case an enhancement of the sentence. In the case Queen-Empress V. Dansang Dada ILR 18 Bom. 751, it was held that the action of a Sessions Judge, who on appeal altered a sentence of Rs. 51 fine to a sentence of rigorous imprisonment for one month, was illegal. This is a more glaring case of enhancement. I set aside the order of the District Magistrate in regard to the sentence passed on Lachmi Kant, and restore the sentence imposed by the Magistrate of the second class.