MOHAN LAL AND OTHERS Vs. STATE

JUDGEMENT

(1.) I have heard the learned Counsel for the parties. When an accused is convicted under Sec. 325 IPC it is incumbent upon the court to inflict a sentence of imprisonment which may be nominal. It is optional to add a sentence of fine in addition to that of the sentence of imprisonment. As the learned Sessions Judge has rightly pointed out, by inflicting a sentence of fine of Rs. 30/ - on Pita under Sec. 325 IPC the trial Magistrate has awarded an illegal sentence whereby not only Pita but the other co accused have been deprived of the right of appeal. If Pita had been sentenced to undergo imprisonment even till the rising of the court, all the accused persons including Pita would have got the right of appeal (vide Sec. 415A of the Code of Criminal Procedure). Another illegality committed by the trial magistrate was that the two sentences of imprisonment in default of fine inflicted on Pita have been directed to run concurrently (see Sec. 64 IPC and Sec. 35 Code of Criminal Procedure. The learned Sessions Judge has recommended a de novo trial of the accused persons. In my opinion, it will be sufficient it the trial magistrate is directed to pass sentences according to law.

(2.) The result is that the reference is accepted to this extent that the sentence of Rs. 30/ fine, inflicted upon Pita under Sec. 325 IPC is set aside and the trial magistrate is directed to pass a sentence upon him under that Sec. in accordance with law. I should not, however, be understood as having expressed any opinion on the merits of the case, i.e. that the offences under Sec. 24 Cattle Trespass Act and Sec. 325 IPC were brought home to the respective accused. The fine, if recovered from Pita, should be refunded to him.

(3.) Let the record be returned to the trial magistrate, with a copy of this order, for necessary action. This order will be read in both the references.