IMPORTANT POINT
An appeal is maintainable under section 428 Criminal Procedure Code, 1398 against an order passed under section 562 Criminal Procedure 1898 convicting the accused but then releasing them after admonition. Such appeal is to be filed by convicted person and not the complainant. However, an incompetent appeal by the complainant can be treated as Revision.

JUDGMENT

A. M. Bhattacharjee, Acg. J. -"In law, in life," observed Krishna Tyer, J., in Raj Kapoor v. State1 "a short-cut may prove a wrong cut" and the case at hand appears to be a clear demonstration thereof. The learned Magistrate, on receipt of a complaint and on the basis of the complainant's statement on oath before him and the report of enquiry made by the police as per his order, issued summons under section 321, Indian Penal Code against the four accused persons and on their appearance in obedience to the summons, explained the substance of the accusations to them under section 242 of the Code of Criminal Procedure, to which all of them pleaded not guilty. That being the position, the learned Magistrate ought to have thereafter proceeded with the trial after taking all such evidence as the complainant could produce and then after hearing the accused and taking all such evidence as they could produce, in accordance with section 244 and the succeeding sections of Chapter XX, Code of Criminal Procedure, 1898, that being the Code still operating in Sikkim. But instead of taking such a course, the learned Magistrate skipped over an those provisions and straightaway jumped too soon to section 562 of the Code and released the accused persons after admonition. The learned Magistrate appears to have been morally convinced that the case was "of a petty nature" justifying the release of the accused after admonition, without realizing the moral conviction, by itself, has no value in a Court of law and a legal conviction alone can justify a curial order. The case at hand, therefore, is vitiated with patently illegal exercise of jurisdiction and demands intervention by this Court for setting it right. But how to intervene and which jurisdiction of this Court to be invoked for such intervention, the appellate or the revisional, is the main question that has arisen in this-case.

2. An order under section 562, though not a sentence, is nevertheless a conviction, which alone can be followed by a release after admonition The marginal note to sub-section (l-A) of section 562 is "conviction and release with admonition" and as the beginning of the sub section clearly declares the provisions thereof can be invoked only "in any case in which a person is convicted." They can be and, in fact, there had been a good deal of debate as to whether an appeal would lie from an order under section 562 where under an accused is convicted without a sentence of punishment and is released on probation of good conduct under sub-section (1) or released with admonition under sub-section (1A). It was debated was early as in 1904 in Mi Shwe Nyun v. King Emperor2 in the Court of the Judicial Commissioner. Upper Burma and in Emperor v. Manohar Das3 in the Chief Court of Punjab and both the decisions held in favour of appeal In Hayata v. Emperor4, Shadi Lal, J (as his Lordship then was) followed Emperor v. Manohar Das (supra) and declared that "there is no law which precluded an appeal from a conviction without sentence."

3. In fact there appears to be good number of authorities the weight of which is overwhelmingly in favour of the view that an appeal is maintainable against an order passed under section 562 releasing an accused, on conviction, on probation or with admonition, without improving any sentence and most of the important decisions on the point have been referred to in Sheo Narain v. State.5 where Gurtu, J. of the Allahabad High Court, on a difference of opinion between Mulla and Tandon JJ., held in favour of maintainability of an appeal against an order passed under section 562. A different note was, however struck in Hari Charan v. State.6 where Chandiramani, J., of the same High Court, sitting singly and without any reference to any of the earlier case-laws on the point, including one of his own High Court in Emperor v. Hira Lal,7 held that no such appeal could lie under any provision of the Code of Criminal Procedure. Such a different note also ap