In Re: Badsha

Venkatasubba Rao, J.—The accused was convicted by the 2nd Presidency Magistrate, Madras, of an offence punishable under Sections

420 and 379, Indian Penal Code, and sentenced to undergo rigorous imprisonment for a term of one year. On appeal to this Court by the

accused, I was of the opinion that it was -expedient that the accused should be released on probation of good conduct, under Sect. 562 of the

Criminal Procedure Code as he was only 17 or 18 years of age and a first offender. Accordingly, I directed that he should be released, on his

entering into a bond of the kind, specified in Section 562, for R?. 1,000, with two sureties each for a like sum.

The Chief Presidency Magistrate has reported that the accused has not furnished security and submitted the case for orders of this Court.

The point to be decided is whether in the circumstances, the punishment originally awarded stands. I do not think it does. Sub-section 2 of

Section 562 runs thus:

An order under this section may be made by an appellate Court or by the High Court, when exercising its powers of revision,

The order made by me, on the previous occasion, is tantamount to the setting aside of the sentence passed by the Magistrate. Under the section,

the Court of first instance may either sentence the accused to punishment, or in the alternative release him, on his entering into a bond. The High

Court did what the Magistrate ought to have done and released the accused on probation of good conduct. The effect of the order of the High

Court is therefore to sot aside the sentence passed on the accused. The case, therefore, must be dealt with, as if the accused had been released,

on probation of good conduct by the Magistrate himself.

This being the position, I have next to consider what the consequence of the accused''s failure to furnish security is. The Code is silent on the

subject. But, it stands to reason that the proper view to take is that the accused, who was convicted, but not sentenced to punishment, is produced

before the Court, for the purpose of suitable punishment being awarded. This is the view, which the Chief Presidency Magistrate has taken of the

law and I think he is perfectly right.

As regards punishment, the accused has been in jail for a little over five months, in pursuance of the sentence, originally passed by the

Magistrate. The punishment already undergone is, in the circumstances, adequate and I therefore direct him to be releasd from jail.