Emperor vs Jinga Gamaji

Norman Macleod, Kt., C.J.—The accused was convicted u/s 381, Indian Penal Code, of the theft of gold and silver ornaments and clothes belonging to the complainant in whose service he had been for three years as a cook. The Magistrate convicted him, and as it was his first offence, ordered him to be released on a bond on probation of good conduct for a period of one year u/s 562, Criminal Procedure Code. The matter has been referred to this Court on the ground that as sentence of imprisonment is obligatory when an offence u/s 381, Indian Penal Code, has been proved, the Magistrate could not give the convicted person the benefit of Section 562, Criminal Procedure Code. We think that on a proper construction of Section 562, a first offender, provided the other provisions of the section apply, is entitled to the benefit of the section, even when without such provisions the Magistrate would be obliged to pass a sentence of imprisonment. Any other construction would entirely nullify in a great number of eases the provisions of Section 562. We discharge the rule.