KRUSHNA CHANDRA BARIK Vs. STATE OF ORISSA

JUDGEMENT

(1.) CAN an order of conviction not followed by a sentence, passed by a Magistrate be assailed in appeal is the single but important question raised in this application.

(2.) A detailed reference to the factual position is unnecessary as the controversy revolves round the aforesaid question which is one of law. Facts necessary for disposal of the matter in a nutshell are that the learned Judicial Magistrate. First Class, Jagatsinghpur found the petitioner guilty of an offence punishable Under Section 326 of the Indian Penal Code, 1860 (in short, 'IPC'), and convicted him thereunder. He was, however, acquitted of the offence punishable Under Section 324 read with Section 34, IPC. His co -accused was acquitted in respect of offences punishable Under Sections 326, 324 read with Section 34, IPC. Unfortunately no finding regarding the sentence was recorded, and it has only been stated that the petitioner was not entitled to get benefit under the Probation of Offenders Act, 1958. An appeal was preferred before the learned Sessions Judge, Cuttack. who held that the stage to file an appeal had not come. A direction was, however given to the petitioner to appear before the trial Court on 20th June, 1994 so that appropriate orders regarding sentence can be passed.

(3.) THE learned counsel for State on the other hand supported the view expressed by the learned Sessions Judge and submitted that without award of a sentence the proceeding before the concerned Court does not pome to an end, end only a combined order of conviction and sentence can be assailed in the higher forum.