Newbould and Smither, JJ. (1st June 1917):— In this case, the sentence passed on the petitioner was enhanced by this Bench dealing with undefended criminal cases on the recommendation of the District Magistrate of Tipperah who referred the case under Section 438 of the Cr PC. It appears from the letter of reference that before making the reference the District Magistrate gave the accused a hearing. It, therefore, appeared to us that the provisions of Cl. (2) Section 439 of the Cr PC, had been sufficiently complied with. That clause runs thus:
“No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence.”
2. After hearing the learned counsel for the petitioner and giving further consideration to the matter, we think that the hearing referred to in that section should be before the Court which passes the order of enhancement and the hearing before the referring Court was insufficient. We accordingly review our order and set it aside, and as the petitioner is now represented by counsel, this reference No. 81 of 1917, from the District Magistrate of Tipperah will be dealt with by the regular criminal Bench.
3. Pending further orders in this matter the petitioner will be released on bail to the satisfaction of the District Magistrate. Let the bail order go down at once.
JUDGMENT
4. This is a reference made by the District Magistrate of Tipperah under the provisions of Section 438 of the Cr PC. It appears that the accused with whose case we are now dealing, one Romesh Chandra Gupta was employed in Chandpur Post Office as a postal clerk, and it has been found that he misappropriated a sum of Rs. 151-8-0 made over to him by the addressee of a value payable parcel. When his offence was detected, he admitted his guilt to his superior officer and subsequently to the departmental officer who held an enquiry into the matter. When placed on his trial he again pleaded guilty. It further appears that the money misappropriated, has been made good by his relatives. Now these are all matters which may properly be taken into account on the question of sentence. But still we cannot but think that the sentence of one day's simple imprisonment and a fine of Rs. 50 is not an adequate punishment for the offence committed. His age was also taken into account. But it appears that he is of the age of 25, that is to say he is of an age when it should have been possible for him to resist a temptation of the sort held out. In considering what sentence we should now inflict upon him we ought, however, to consider further the period that has elapsed since his conviction on the 15th November 1916 and also the fact that under an order of this Court passed on the 11th May he has in fact suffered seven days rigorous imprisonment. Since then, too, and also in the proceedings before the District Magistrate he has had to undergo a very considerable expenditure. Further since the initiation of these proceedings, he or his relatives have no doubt Buffered great anxiety. Talking all the circumstances into account we think that it will be now sufficient for the ends of justice if, maintaining the sentence of fine, we impose upon the accused the sentence of rigorous imprisonment for a period of six months to run from the date on which he surrenders. The accused will now be called upon to surrender and undergo the sentence now passed upon him.
S.N/R.K
5. Sentence enhanced.