Vol. 12 · pages 481–485

460 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES CIVIL PROCEDURE CODE CRIMINAL PROCEDURE CODE Section 435 —contd. for the purposes of this subsection and of section 437. (2) If any Sub-Divisional Magistrate acting under subsection (1) considers that any such finding, sentence or order is illegal or improper, or that any such proceedings are irregular, he shall forward the record, with such remarks thereon as he thinks fit, to the District Magistrate. **** (4) If an application under this section has been made either to the Sessions Judge or District Magistrate, no further application shall be entertained by the other of them. Section 436 On examining any record under section 435 or otherwise, the High Court or the Sessions Judge may direct the District Magistrate by himself or by any of the Magistrates subordinate to him to make, and the District Magistrate may himself make or direct any Subordinate Magistrate to make, further inquiry into

461THE LAW OF CRIMINAL PROCEDURE IN BRITISH INDIA CIVIL PROCEDURE CODE CRIMINAL PROCEDURE CODE Section 436 —contd. any complaint which has been dismissed under section 203 or sub-section (3) of section 204, or into the case of any person accused of an offence who has been discharged : Provided that no Court shall make any direction under this section for inquiry into the case of any person who has been discharged unless such person has had an opportunity of showing cause why such direction should not be made. Section 437 When, on examining the record of any case under section 435 or otherwise, the Sessions Judge or District Magistrate considers that such case is triable exclusively by the Court of Seession and that an accused person has been improperly discharged by the inferior Court, the Sessions Judge or District Magistrate, may cause him to be arrested,-and may thereupon, instead of directing a fresh inquiry, order him to be committed for trial

462 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES CIVIL PROCEDURE CODE CRIMINAL PROCEDURE CODE Section 437 —contd. upon the matter of which he has been, in the opinion of the Sessions Judge or District Magistrate, improperly discharged : Provided as follows:— (a) that the accused has had an opportunity of showing cause to such Judge or Magistrate why the commitment should not be made ; (b) that, if such Judge or Magistrate thinks that the evidence shows that some other offence has been committed by the accused, such Judge or Magistrate may direct the inferior Court to inquire into such offence. Section 438 (1) The Sessions Judge or District Magistrate may, if he thinks fit, on examining under section 435 or otherwise the record of any proceeding, report for the orders of the High Court the result of such examination, and, when such report contains a recommendation that a sentence be reversed or altered, may order that the execution of such sentence be suspended, and, if

463THE LAW OF CRIMINAL PROCEDURE IN BRITISH INDIA CIVIL PROCEDURE CODE CRIMINAL PROCEDURE CODE Section 438 —contd. the accused is in confinement, that he be released on bail or on his own bond. (2) An Additional Sessions Judge shall have and may exercise all the powers of a Session Judge under this Chapter in respect of any case which may be transferred to him by or under any general or special order of the Sessions Judge. Section 439 (1) In the case of any proceeding the record of which has been called for by itself or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 423,426,427 and 428 or on a Court by section 338, and mayenhance the sentence ; and when the Judges composing the Court of Revision are equally divided in opinion, the case shall be disposed of in manner provided by section 429. (2) No order under this section shall be made to the

464 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES CIVIL PROCEDURE CODE CRIMINAL PROCEDURE CODE Section 439 —contd. prejudice of the accused un-less he has had an opportunity of being heard either personally or by pleader in his own defence. (3) Where the sentence dealt with under this section has been passed by a Magistrate acting otherwise than under section 34, the Court shall not inflict a greater punishment for the offence which, in the opinion of such Court the accused has committed than might have been inflicted for such offence by a Presidency Magistrate or a Magistrate of the First Class. (4) Nothing in this section applies to an entry made under section 273, or shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction. (5) Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed. (6) Notwithstanding anything contained in this section, any convicted person to whom