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of <h1>Supreme Court upholds rigorous imprisonment sentence for gaming house possession; clarifies High Court's authority.</h1> <h3>JAYARAM VITHOBA AND ANOTHER Versus THE STATE OF BOMBAY</h3> The Supreme Court affirmed the High Court's decision to impose a three-month rigorous imprisonment sentence under section 5 of the Bombay Prevention of ... - Issues:- Conviction and sentencing under sections 4(a) and 5 of the Bombay Prevention of Gambling Act.- Applicability of section 423 of the Code of Criminal Procedure regarding imposition of sentence.- Interpretation of the power of the High Court to impose a sentence under section 5.- Consideration of the right to be heard in defense and show cause against conviction and sentence enhancement under section 439.Analysis:The judgment by the Supreme Court involved a case where the appellants were found in possession of a gaming house, leading to convictions under sections 4(a) and 5 of the Bombay Prevention of Gambling Act. The first appellant was initially sentenced under both sections, but the High Court set aside the conviction under section 4(a) and affirmed the conviction under section 5, imposing a sentence of three months' rigorous imprisonment. The appeal raised the issue of whether the High Court had the authority to impose a sentence under section 5 when no such sentence was passed by the Magistrate, citing the provisions of section 423 of the Code of Criminal Procedure.The appellant argued that the High Court's imposition of a sentence under section 5 amounted to an enhancement, which was illegal without proper notice. The appellant relied on the decision in Ibrahim v. Emperor to support this contention. However, the Supreme Court noted conflicting interpretations in other cases, such as Superintendent and Remembrancer of Legal Affairs v. Hossein Ali and Pradip Chaudhry v. Emperor, regarding the power of the appellate court to impose a sentence under specific circumstances.The Supreme Court clarified that when a conviction is affirmed on appeal without a sentence being imposed by the trial Magistrate, the appellate court has the authority to pass a sentence under section 423(1)(d) of the Code of Criminal Procedure. The Court emphasized that the power to impose a sentence in such cases is derived from the law and is not considered an enhancement when no prior sentence existed. Additionally, the Court highlighted the right of the accused to be heard in defense and show cause against conviction and sentence enhancement under section 439.In conclusion, the Supreme Court dismissed the appeal, affirming the High Court's decision to impose a sentence under section 5 based on the legal provisions allowing for such action. The Court also noted that the absence of formal notice under section 439(2) did not prejudice the appellant, as the opportunity to present a defense was provided during the proceedings.
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