Judgement Consolidated Appeals by special leave from a judgment of the High Court (December 2, 1919) affirming a conviction of the appellants under the Indian Penal Code, s. 304, by the Sessions Judge of Vizagapatam (August 12, 1919), and, upon an application by the Public Prosecutor for revision, enhancing the sentences passed upon them from three years rigorous imprisonment to fourteen years transportation. Special leave to appeal to His Majesty in Council was granted on June 11, 1920. 34 Law. Rep. 48 Ind. App. 35 ( 1920- 1921) Sayyapureddi C hinnayya V. King-Emperor 135 1920. Nov. 12. Dunne K.C. and Narasimham -for the appellants. The High Court had no jurisdiction to pass the sentences which they did. The only power to impose a sentence of transportation for a term of years was that given by s. 59 of the Indian Penal Code (XLV. of 1860), since neither s. 121A nor s. 124A applied. Upon the true construction of s. 69, if the sentence is of transportation for a term of years, the period cannot exceed the maximum term of imprisonment to which the prisoner could have been sentenced. There is a course of decisions in India to that effect Reg. v. Rughoo (( 1864) Ex. vol. Suth. W. R. (Crim) 30.); Reg. v. Merian (( 1868) 10 Suth. W.R. (Crim.) 10.) ; Reg. v. Naiada. (( 1875) I. L. R. 1 A. (F. B.) 43.) The maximum term of imprisonment which can be awarded for offences under s. 304 is fixed by that section at ten years. The sentences were therefore illegal and should be set aside. The matter cannot be remitted to the High Court, since that Court is functus officio ; there is no statutory provision under which the High Court or the Sessions Court has further jurisdiction. [As to the revisional powers of the High Court reference was made to Code of Criminal Procedure (V. of 1898), ss. 419, 423, 439.] Sir Erle Richards K.C. and Kenworthy Brown for the Crown. The High Court admittedly could have transported the appellants for life. Even if therefore the sentences given were irregular there was .no such substantial injustice or miscarriage of justice as, according to the authorities, would render the case one in which the Board would advise an interference. 419, 423, 439.] Sir Erle Richards K.C. and Kenworthy Brown for the Crown. The High Court admittedly could have transported the appellants for life. Even if therefore the sentences given were irregular there was .no such substantial injustice or miscarriage of justice as, according to the authorities, would render the case one in which the Board would advise an interference. [Their Lordships referred to Dal Singh v. King-Emperor (( 1917) L. R. 44 I. A. 137.) and Ibrahim v. The King. ([ 1914] A. C. 599.)] It is, however, submitted that the construction placed in India upon s. 59 is erroneous, and that it authorizes transportation for life or for a shorter period. If that is so, effect should now be given to the true construction of the section. If the Board are of opinion that the appeal should be allowed, the question arises how the matter should be dealt with. It would be an impossible result that the appellants should go free. There are three possible alternatives. First, that the order made on revision should be set aside, leaving standing the affirmed conviction and the sentence passed by the Sessions Judge. Secondly, that the Board should remit the case to the High Court, indicating the view of the Board ; that course is frequently taken in civil matters. In analogous circumstances arising under the jurisdiction of the House of Lords in criminal appeals that procedure was followed in Rex v. Ball. ([ 1911] A.C. 47.) That case was more difficult, because by writ of error only the whole conviction and sentence could be set aside. Thirdly, the Board could itself advise His Majesty to reduce the sentence to ten years transportation. Dunne K.C. in reply. This being a matter of want of jurisdiction it is no answer to say that no substantial injustice was done. Dec. 9. The judgment of their Lordships was delivered by LORD BUCKMASTER. The appellants were convicted under s. 304 of the Indian Penal Code of culpable homicide not amounting to murder, and were sentenced by the Sessions Judge of Vizagapatam to rigorous imprisonment for three years. On appeal to the High Court of Judicature at Madras, that Court affirmed the convictions and, on the application of the Public Prosecutor for revision of the sentences, enhanced the sentences to transportation for fourteen years. On appeal to the High Court of Judicature at Madras, that Court affirmed the convictions and, on the application of the Public Prosecutor for revision of the sentences, enhanced the sentences to transportation for fourteen years. Leave to appeal to His Majesty in Council having been obtained, it was contended on behalf of the appellants that the High Court had no jurisdiction to impose a sentence of transportation for fourteen years. Sect. 304 of the Penal Code authorizes a sentence of " transportation for life or imprisonment of either description for a term which may extend to ten years " ; and s. 59, which applies to every case where an offender is punishable with imprisonment for a term of seven years or upwards, authorizes the Court which sentences such offender, instead of awarding sentence of imprisonment, to sentence the 34 Law. Rep. 48 Ind. App. 35 ( 1920- 1921) Sayyapureddi C hinnayya V. King-Emperor 136 offender to transportation for a term not less than seven years and not exceeding the term for which by the Code he is liable to imprisonment. These provisions have been considered in several cases in India, and it has been uniformly held that, while they authorize a sentence of transportation for life, they do not empower a Court to impose a sentence of transportation for a term of years exceeding the maximum term for which a sentence of imprisonment can be imposed— namely, ten years. Their Lordships agree with those decisions, and it remains for them to consider what advice they should tender to His Majesty in the present case. Their Lordships were invited by counsel for the Crown to apply the rule which has been repeatedly laid down by the Board, that " His Majesty will not be advised to review or interfere with the course of criminal proceedings unless it is shown that by a disregard of the forms of legal process or by some violation of the principles of natural justice or otherwise substantial and grave injustice has been done" In re Dillet (( 1887) 12 App. Cas. 467.); and to say that, as the offence in this case was grave, and the appellants might justly have been sentenced to transportation for life, the sentence of transportation for fourteen years, though irregular, should be allowed to stand. Cas. 467.); and to say that, as the offence in this case was grave, and the appellants might justly have been sentenced to transportation for life, the sentence of transportation for fourteen years, though irregular, should be allowed to stand. But it appears to their Lordships that as in this case the sentence is found not to be authorized by law they must hold that there has been substantial injustice, for the sentence may involve the incarceration of the appellants during many years without legal authority. Although the crime committed was no doubt of a very grave character, and it may be that the High Court, if the legal objection to a sentence of transportation for fourteen years had been brought to their notice, would have passed a life sentence, their Lordships cannot assume that this would have been done, and it is no part of their duty to consider whether a higher sentence than that actually passed should or might justly have been inflicted. Their Lordships will humbly advise His Majesty that the cases be remitted to the High Court of Judicature at Madras with instructions to pass sentences according to law.