IN RE: MUTHU NADAR Vs. STATE

JUDGEMENT

(1.) THE accused was found guilty by the Sessions Judge of Tinnevelly of an offence under Section 323 of the Indian Penal Code and was sentenced to imprisonment till the rising of the Court. Under the provisions of Section 439 of the Code of Criminal Procedure, Byers, J., called upon the accused to show cause why a sentence should not be passed upon him according to law. In In re Kunhi Baud, (1928) 56 M.L.J. 550, Jackson, J., had expressed the opinion that such a sentence was not in accordance with law and in In re Ramalingayya : AIR1942Mad723 , Horwill, J., had said the same. The question whether such a sentence is a sentence passed according to law has been fully argued before us and for reasons which we shall state we consider that these decisions must be overruled.

(2.) NEITHER the Indian Penal Code nor the Code of Criminal Procedure directs where a sentence of imprisonment shall be served. In most of the punishment sections to be found in the Indian Penal Code only the maximum period of imprison ment is stated, but in a few sections which related to offences of a very serious nature a minimum sentence is fixed. For instance, the minimum sentence for murder is transportation for life and for robbery or dacoity with attempt to cause death or grievous hurt it is seven years' imprisonment. Unless the punishment section fixes a minimum the Court has full discretion to pass a sentence of imprisonment for any period less than the maximum, for instance, for five minutes if this would fit the offence.

(3.) IN In re Kunhi Bava, (1928) 56 M.L.J. 550, a person was convicted under Sections 193, 196 and 471 of the Indian Penal Code and was sentenced to imprisonment till the rising of the Court and to a fine of Rs. 300. Dealing with the adequacy of this sentence, Jackson, J., said :