ACCUSED Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This reference made by the Sessions Judge, Kozhikode under Section 395(2), Code of Criminal Procedure raises a short question, though the arguments before us were mere directed to the validity of the reference than the point referred. In C.C. No. 74 of 1979 the Chief Judicial Magistrate, Kozhikode convicted the accused under Section 392 read with Section 34, Indian Penal Code and sentenced them to imprisonment till the rising of the court and a fine of Rs. 300 each, with a default sentence of rigorous imprisonment of one month. They appealed to the Sessions Court. The Sessions Judge confirmed the conviction but found that on the terms of Section 392, Indian Penal Code the offence was punishable with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine and that as imprisonment till the rising of the court was no rigorous imprisonment the sentence was illegal. While confirming the conviction the learned Judge ordered that the question of sentence would be referred to this Court.

(2.) We heard counsel for the accused and the learned Public Prosecutor.

(3.) Counsel for the accused agreed that in view of the terms of Section 392, Indian Penal Code the sentence awarded by the thief Judicial Magistrate was illegal and that the learned Sessions Judges opinion in this regard was correct. He however urged that Section 395(2), Criminal Procedure Code, under which the reference has been made permits a reference to this Court only in original proceedings and, that a Sessions Judge has no power to make a, reference in an appeal to decide a question of Jaw. Counsel based this contention on the authority of Emperor v. Sulaiman the decision of a learned Judge of the Lower Burma Chief Court. He pointed out that the Sessions Judge could have set aside the sentence if he felt it to be illegal and made appropriate consequent directions but contended that he could not make the reference. We agree that the Sessions Judge could have set aside the sentence but as the contention involves the power of a Sessions Court in an appeal we thought it appropriate to consider it.