1967 (9) TMI 155

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..... g 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 th .....

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..... n 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 s .....

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..... that the trying magistrate did not indicate the precise order in which the two sentences were to run. It was wholly immaterial whether the sentence under Section 448 was to run first or the sentence under Section 323 or under Section 325 was to run first. From the decision relied upon by the learned Judge himself, it will be clear that a direction as to the order in which the two consecutive sente .....

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..... also in error in holding that a sentence of fine is imperative upon a conviction under Section 325 of the Penal Code. No such view was taken in the Patna decision upon which the learned Judge has relied That decision has merely stated that a sentence of imprisonment is obligatory upon a conviction under Section 325 and it does not say that such a sentence is illegal unless there is also a sentenc .....

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..... to such offences, the legislature has left a discretion in the Court to impose also a sentence of fine in appropriate cases in addition to the imposition of a sentence of imprisonment which alone is obligatory. 6. In my opinion, the learned Judge was not at all justified in making an order of remand in the present case. I must, therefore, set aside the order of the learned Judge, and I send the .....

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