1. This is a reference from the District Magistrate of Belgaum. The opponent was convicted by the trial Magistrate of offences under Sections 380 and 454 of the Indian Penal Code and the Magistrate directed that he should be released on probation of good conduct under Section 562(1) of the Criminal Procedure Code. The learned District Magistrate has made the reference on the ground that as the offence under Section 454 is punishable with more than seven years' imprisonment and the opponent was more than twenty-one years old, the Magistrate had no power to act under Section 562(1),
2. The District Magistrate's view is correct. But after hearing Mr. Manerikar or behalf of the opponent we are- not satisfied that there was evidence on which the opponent could be convicted. The only evidence against him is that, after another accused had pointed out where the stolen property was concealed, he himself pointed out the same place. That place was a threshing floor which did not belong to the opponent and to which the whole village had access. All that the opponent's action proves is that he knew where the stolen property was concealed. Now it has been pointed out by this Court in Emperor v. Shivputraya : AIR1930Bom244 that the mere fact that an accused person points out the place in which the stolen property is concealed does not give rise to any presumption under Section 114 of the Indian Evidence Act, or justify his conviction for the offence of receiving stolen property, still less for the offence of theft. In view of this authority, with which I respectfully agree, the convictian of the opponent cannot be upheld, and exercising our powers in revision we set aside the conviction and acquit him and direct that the bond be cancelled.
3. As however we frequently receive references because a Magistrate has acted under Section 562(1) when the offences charged are theft and house-breaking, we desire to point out what the correct procedure is. If the Magistrate gives merely a nominal sentence of imprisonment till the rising of the Court, then, although he is complying with the letter of the law, he is in fact treating the accused more leniently than if he had applied Section 562(I). But theft and house-breaking are offences for which separate punishments can be given. If the accused is convicted under Section 379, theft, or Section 380, theft in a building, he may in a proper case be released on probation of good conduct. If he is convicted of house-breaking with intent to commit theft (ss. 454 and 457), a sentence of imprisonment is obligatory. When, therefore the accused is convicted under both these sections and the Magistrate considers that it is not desirable to inflict a substantial sentence of imprisonment, his proper course is to direct the accused to execute a bond under Section 562(I) for the offence of theft and to sentence him to imprisonment until the rising of the Court for the offence of house-breaking. The District Magistrate should bring the proper practice in this matter to the notice of Magistrates subordinate to him.