1. This is a reference by the learned District Magistrate observing that the learned Magistrate who convicted the accused under Sections 307 and 326 was not justified in giving him the benefit of Sections 562 (1) Criminal P. C., and recommending that the accused should be given a sentence of rigorous imprisonment instead.
2. The accused is represented and the learned counsel on his behalf has argued that he is entitled also to show cause against the conviction of the accused under Section 307, Penal Code, The learned counsel obviously assumes that this is a case of enhancement of sentence and that accordingly under Section 439, Sub-section (6) it is open to him to show while opposing the motion for enhancement that the acaused had been wrongly convicted by the Court below. It may be pointed out that in a case under Section 562 (1), Criminal P. C., the Magistrate does not pass a sentence and merely directs the release of the accused on his executing a bond with or without sureties to keep the peace and be of good behaviour. In the circumstances, since there is no sentence, there can be no enhancement of the sentence. Accordingly the learned counsel cannot be allowed to show cause against the conviction of the accused.
3. So far as the order is concerned, it is clear from a bare perusal of Section 562, Criminal P. C., that it is not applicable where the accused is convicted of an offence which is punishable with death or imprisonment for life. In this case, the accused has been convicted under Section 307 and since hurt has been caused, he was liable to be sentenced to rigorous imprisonment for life, therefore, the case calls for a sentence of imprisonment being awarded to the accused. According to Sub-section (3) of Section 562, it is open to the High Court when exercising its powers of revision to set aside the order passed by the Magistrate under Section 562 and in lieu thereof pass a sentence according to law; but there is a proviso and that is to the effect that the High Court shall not under the Sub-section inflict a greater punishment than might have been inflicted by the Court by which the offender was convicted.
4. The learned Government Advocate statesthat the learned Magistrate of the trial Courthad powers under Section 30, Criminal P. C., andtherefore, could inflict any sentence except thatof death or imprisonment exceeding seven years.In this case the accused is a lad of 15 or 16 yearsof age and the act indulged in by him, to Baythe least, was the result of momentary impulsewithout any premeditation. In the circumstances,we consider a sentence of three years imprisonment under Section 807 and two years imprisonment under Section 326 will meet the ends of justice.We accordingly hereby accept the reference,set aside the order passed by the learned Magistrate under Section 662 (1), Criminal P. C., andupholding the convictions under Sections 307 and326, Penal Code, hereby sentence the accused tothree years rigorous imprisonment under Section 307and two years rigorous imprisonment underSection 326, Penal Code. Both the sentences will runconcurrently. The accused is present in personand will be taken in custody forthwith.