PRATUL CHAUDHARI AND OTHERS Vs. STATE

JUDGEMENT

(1.) The petitioners before this Court have been convicted for an offence under S.448 I. P. C. They were sentenced to a fine of Rs. 1,000/- each and in default of paying the fine were to undergo R. I. for two months; they were also ordered to restore possession of the disputed room to the complainant. In view of the points involved in this revision petition it is unnecessary to give details of the offence because this revision is not concerned with the merits of the conviction.

(2.) The conviction of the petitioners was recorded by Shri R. N. Jindal, Metropolitan Magistrate, Delhi on 30-7-1976 and the petitioners thereafter appealed to Shri Mahesh Chandra, 13th Additional Sessions Judge Delhi who did not decide the appeal on merits but directed the remand of the case back to the magistrate on the view that the learned Magistrate had not granted the petitioners the benefit of S.3 of the Probation of Offenders Act and furthermore had not independently heard the accused on the question of sentence. The learned Additional Sessions Judges was of the view that S.235 (2) was in pari materia with S.248 (2) which as interpreted by the Supreme Court required the court to give a further opportunity to the accused to address arguments on the question of sentence. The Court, therefore, came to the conclusion that the sentence had not been passed in accordance with law. Accordingly, the Additional Sessions Judge remanded the case back to the Magistrate for recording sentence in accordance with law.

(3.) The provisions of the Code of Criminal Procedure, 1973 have been interpreted to the effect that the magistrate has first to record a conviction and has then to hear the accused on the question of sentence. If the trial in the present case was under the new Code the decision of the Additional Sessions Judge would not have been wrong. However, the trial before the magistrate commenced in 1969 long before the new Code was enacted. It is provided in S.484 (2) that in spite of the repeal of the old Code trials which are already pending will be in accordance with the old Code notwithstanding its repeal. The proviso specifically says that in respect of Sessions Trials the new Code will be made applicable. Therefore, clearly the magistrate was in error in coming to the conclusion that the new Code had to be applied even to cases pending under the old Code.