JUDGMENT - Joshi V.V., J.- This application filed under the provisions of sec­tion 389 (3) of the Criminal Procedure Code, 1973, by the applicant (original accused) raises an interesting question.

2. The applicant was tried by the Chief Judicial Magistrate, Amravati,

in Criminal Case No. 3448 of 1974 for the offence punishable under section 325 of the Indian Penal Code and was sentenced to pay only a fine of Rs. 150 (in default of payment of fine to undergo rigorous imprisonment for one month). Aggrieved by this decision, the State of Maharashtra preferred an appeal to this Court under the provisions of section 377 of the Criminal Procedure Code, 1973. That was Criminal Appeal No. 309 of 1979. This Court after hearing that appeal confirmed the finding of conviction under section 325 of the Indian Penal Code and observed that the sentence imposed for the offence by the trial Court was an illegal sentence in the sense that there had to be a sentence of imprisonment along with sentence of fine and, therefore, this Court allowed that appeal and enhanced the sentence under sec­tion 325 of the. Indian Penal Code, on the applicant to a sentence of rigorous imprisonment for one y

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