LAHUR MAHATO Vs. GIRIDHARI MAHATO AND ORS.

JUDGEMENT

(1.) This is a reference by Shri P.K. Roy, Sessions Judge Purulia recommending that the order dated the 20th December, 1971, passed by Shri R.K. Ghosh, Judicial Magistrate, 1st Class, Purulia in case No. C -257 of 1968, convicting the accused -persons Nos. 2 to 20 under Sec. 447 of the Indian Penal Code but passing no sentence upon them, is not a proper judgment under Sec. 367(2) Criminal Procedure Code and the High Court may be pleased to pass such sentence or further order as it deems fit and proper. The facts leading on to the reference are short and simple. On the 29th June, 1968, one Lamar Mahato filed a petition of complaint against one Giridhari Mahato and 19 others on various allegations. On examining the complainant the learned Sub -divisional 'Judicial Magistrate, Purulia issued process against all the accused -persons under Ss. 147 and 447 of the Indian Penal Code. The accused -persons who appeared thereafter, were released on bail and the case was transferred to the file of Sri R.K. Ghosh, Judicial Magistrate, 1st Class, Purulia for disposal. Five witnesses were examined by the complainant including himself and thereafter the learned trying Magistrate framed charges under Ss. 447 and 427 of the Indian Penal Code against the accused -persons who pleaded not guilty to the charge and claimed to be tried. Cross -examination followed and ultimately by his judgment dated the 20th December, 1971, the learned trying Magistrate found all the accused -persons not guilty under Sec. 427 of the Indian Penal Code but guilty under Sec. 447 of the Indian Penal Code and he sentenced only one of them, viz. Giridhari Mahato, to pay a fine of Rs. 100J -, in default to suffer S.I. for one month there under, without passing any sentence on the other accused -persons Nos. 2 to 20. Girdhari preferred an appeal, being criminal appeal No. 4 of 1972, before the learned Sessions Judge, Purulia, who on hearing the arguments of the appellant, felt that the order passed by the learned trying Magistrate relating to the other accused -persons was not in order and in that view stayed the hearing of the appeal and referred the case to the High Court for a suitable order by passing proper sentences, as it deemed fit and proper, on the other 19 accused -persons who were convicted.

(2.) Nobody appeared on behalf of the accused -persons. Mr. Narayan Ranjan Mukherjee, Advocate, appearing on behalf of the State opposed the reference on two grounds, relating to procedure viz., (1) that the learned Judge should have disposed of the appeal first before making the reference; and (2) that there cannot be any reference under Sec. 438 of the Code of Criminal Procedure arising out of an appeal filed in the Court below. Mr. Mukherjee however agreed on merits with the subject -matter of the reference because on conviction the accused -persons should be sentenced in accordance with law as enjoined by the statute. After hearing Mr. Mukherjee on the point of law involved, this Court requested Mr. Kiran Chandra Ghosal, Advocate to appear as Amicus Curiae to assist the Court in determining the point of law involved and Mr. Ghosal readily agreed. Copies of the letter of reference as also of the order -sheet were thereafter served on Mr. Ghosal and the matter came up for final hearing.

(3.) The learned Amicus Curiae supported the reference on merits excepting the last part thereof recommending the passing of proper sentences by the High Court. The steps of Mr. Ghosal's reasoning are: (a) the provisions of Sec. 258(2) of the Code of Criminal Procedure laying down that the learned Magistrate concerned "shall, if he finds the accused guilty, pass sentence upon him according to law"; (b) the language of Sec. 245 (2) where under the learned Magistrate "shall, if be finds the accused guilty pass sentence upon him according to law"; and (c) under Sec. 367(2) it is enjoined that "It shall specify the offence (if any) of which, and the Sec. of the Indian Penal Code or other law under which, the accused is convicted, and the punishment to which he is sentenced." On the basis of the provisions referred to above, the learned Amicus Curiae submitted that it is the intention of the legislature that an accused when convicted should be sentenced, however much nominal the sentence may be, according to the discretion of the Court but the emphasis on a sentence to be passed. Mr. Ghosal also relied on the case of (5) State v/s. Govinda Singh and others, reported in : A.I.R. 1962 M.P. 36 in support of his proposition. Mr. Narayan Ranjan Mukherjee, Advocate, appearing on behalf of the State adopted the submissions of Mr. Ghosal on merits and contended that the learned Judicial Magistrate had acted illegally and improperly in not awarding any sentence in spite of his findings, leading on to the conviction of the accused -persons Nos. 2 to 20 and more so when he had already sentenced the accused No. 1, Giridhari Mahato. The learned Sessions Judge, Purulia in his letter of reference had also observed that it was the duty of the learned Magistrate concerned to have passed appropriate sentences on conviction, and that the judgment passed by him has been vitiated by a non -conformance to Sec. 367(2) of the Code of Criminal Procedure; and that as he was in seisin of the appeal only preferred by Giridhari, the accused No. 1, he was not in a position to revise the order of the learned Magistrate relating to the 19 other accused persons who were not before him and as such had to submit the matter to the High Court for passing a suitable order.