D KHIMANTHARAJA GUPTA Vs. STATE OF MYSORE

JUDGEMENT

(1.) The petitioner was convicted or an offence punishable under Section 56 (g) of the Mysore Police Act. The learned Magistrate instead of sentencing him directed him

(2.) The learned Advocate for the petitioner urges that the case was tried summarily, that an offence under Section 56 (g) of the Mysore Police Act is punishable only with a maximum fir.e of Rs. 50/-and that under Section 414 of the Code of Criminal Pro-eedure, no appeal lies against a sentence of fine not exceeding Rs. 200/-. The test under Section 414 or the Code of Criminal Procedure Code, however is not the punishment in respect of an offence but the sentence actually passed. If, as a matter of fact, a punishment has been inflicted which is not warranted by law that may be a matter for consideration by the Court below or in revision. Whether the remedy is by way of revision or by way of an appeal has to be determined on the basis of the sentence or order.

(3.) It is next urged for the petitioner that an order under Section 563 is not a punishment and that therefore no appeal lies. But Chapter XXXI deal-Ing with appeals refers to appeals against a judgment or an order or a conviction or an acquittal except Section 415 which refers to an appeal against a sentence but that is in the context of providing for an appeal against a combination of sentences. In the case on hand, the learned Magistrate has convicted the accused find Section 408 of the Code of Criminal Procedure provides for an appeal against such a conviction. . I may refer to the decisions reported in Emperor V. Hira Lal, ILR 46 All 828: (AIR 1924 All 765) (A) and Mayandi v. Kudumban, ILR 58 Mad 617: (Am 1935 Mad 157) (B), in which It has been held that an appeal will lie from an order of a Magistrate under Section 563 of the Code of Criminal Procedure. The former decision related to a case tried summarily. The learned Advocate for the petitioner urged that the order made by the learned Magistrate could not be regarded as one under Section 562, Cr. P. C. since the language employed br the learned Magistrate is not that contemplated under that provision. It is no doubt true that the provision contemplates an order directing the accused to be released on his entering into a bond to appear and receive sentence when called upon during such period as the Court may direct and in the meantime to keep the peace and be of good behaviour while the learned Magistrate instead of using the worda "to keep the peace and be of good behaviour" has -employed the words "to obey the laws which are framed for the benefit of the accused and the public." It appeal's to me that while the learned Magistrate would have done well to conform to the language employed in Section 562 (i) his intention undoubtedly was to act under Section 562 (i) of the Code of Criminal Procedure.