STATE Vs. THEYYAN

JUDGEMENT

(1.) This is a reference made by the District Magistrate of Palghat pointing out the illegality committed by the Second Class Magistrate at the station, in awarding the sentence to the accused in C. C. No. 1462/1958. who was tried and convicted for the offence under S.325 I. P. C. After finding the accused guilty of the offence under that section, the learned Magistrate awarded only a nominal sentence of fine of Rs. 30/- with the direction that in default of payment of fine, the accused should undergo rigorous imprisonment for a period of 30 days. The learned District Magistrate points out that the failure of the Second Class Magistrate to award a substantive sentence of imprisonment is a flagrant violation of the mandatory provision contained in S.325 of the Penal Code and that the illegality committed by the Magistrate requires rectification.

(2.) In view of the clear and convincing evidence adduced by the prosecution, it cannot be said that the learned Magistrate went wrong in reaching the conclusion that the accused is .guilty of the offence charged against him.

(3.) On behalf of the accused, it is urged that this court may not exercise its revisional jurisdiction under S.439 of the Code of Criminal Procedure in awarding a sentence of imprisonment to the accused in this case. Reliance was also placed on the decisions in Ramachander Rai v. Ram Beas Tawari (AIR 1933 Patna 179), Bishesher v. Rex (AIR 1949 Allahabad 213) and in State v. Kangan Suba (AIR 1953 Punjab 201) to show that under similar circumstances, the respective High Courts declined to interfere in revision for setting right the illegality committed by Magistrates, in not awarding the proper sentence, as required by the section under which the accused persons were convicted. In all these cases, it was definitely found that the Magistrates had committed an illegality in the award of sentence. All the same, the learned Judges of the High Courts took the view that in the circumstances of those cases, no interference was called for by way of the exercise of the revisional jurisdiction under S.439 of the Code of Criminal Procedure. With all respect, we have to differ from that view. No doubt, interference in revision under S.439 is a matter of discretion vested in the High Court. It is obvious that the discretion contemplated by the section is a judicial discretion. Where the High, court is satisfied that the Subordinate Court has committed an illegality, the proper course to be adopted by the High Court is to interfere and set right the illegality. To decline to interfere by the exercise of revisional jurisdiction in respect of such a matter, will be to condone the illegality and to perpetuate the same. Where the commission of an illegality of the kind mentioned above, is brought to the notice of the High Court within a reasonable time, we think the High Court is bound to interfere and to rectify the mistake committed by the Subordinate Court and to award the proper sentence sanctioned by law. The decisions in Emperor v. Pallan Ahamadulla (1935 M. W. N. 474), Abdul Mejith Sahib v. Emperor (1937 M. W. N. 575) and Emperor v. Venkatassubbayya (1942 M. W. N. 377) are in support of this view. In agreement with this view, we think that it is only proper for this Court to revise the sentence awarded in this case by the learned Magistrate and to bring it in conformity with the express direction contained in S.325 of the Indian Penal Code. The enhancement of the sentence by the addition of a sentence of rigorous imprisonment for a term of 6 months would meet the ends of justice in this case.