TETAR GOPE Vs. GANAURI GOPE

JUDGEMENT

(1.) This application in revision is directed against the appellate order of the Third Assistant Sessions Judge of Biharsharif in an appeal from the judgment of the trying Magistrate convicting the two accused persons as follows Both the accused persons were convicted under Section 448 of the Penal Code and awarded a sentence of rigorous imprisonment for one month each. Besides, one of them was convicted and sentenced to undergo rigorous imprisonment for one month under Section 323 while the other was convicted and sentenced to undergo rigorous imprisonment for three months under Section 325 of the Code. The learned Magistrate, further, directed that, in the case of both the accused persons, the sentences imposed upon them would run consecutively.

(2.) In appeal, a point was raised before the learned Judge to the effect that the sentences awarded by the Magistrate were contrary to law, at least, in two respects. This contention found favour with the learned Judge, who held, firstly, that the order was bad inasmuch as, while making the sentences under the two sections to run consecutively, the learned Magistrate did not specify the order in which the sentences under the two counts would run. In support of this view, the learned Judge relied upon the provisions of Section 35 of the Code of Criminal Procedure and a decision of the Calcutta High Court in Khohna-Moran v. Emperor, AIR 1917 Cal 377, Secondly, the learned Judge held that the sentence imposed upon accused Harkhnan-dan Prasad under Section 325 of the Penal Code was illegal inasmuch as no sentence of fine in addition to the sentence of imprisonment had been imposed upon him by the learned Magistrate. In support of this view, the learned Judge laid stress upon the expression "and shall also be liable to fine" occurring in the latter part of Section 325 of the Penal Code. The learned Judge took the view that the meaning of this expression was that the imposition of a sentence of fine in addition to the sentence of imprisonment was compulsory in case of conviction, under that section and, in support of this view, the learned Judge relied upon a decision of this Court in Ramchander Rai v. Ram Belas Tewari, AIR 1933 Pat 179 (1)

(3.) Since the learned Judge had decided to send the case back to the trial Court on remand, he did not enter into the discussion of the case on merits.