The mandatory provision in S.325 of the Penal Code requires the imposition of a sentence of imprisonment for the offence, and the discretion of the court is limited to deciding the quantum of the sentence.

1. This is a reference made by the District Magistrate of Palghat pointing out the illegality committed by the Second Class Magistrate at the station, in awarding the sentence to the accused in C. C. No. 1462/1958. who was tried and convicted for the offence under S.325 I. P. C. After finding the accused guilty of the offence under that section, the learned Magistrate awarded only a nominal sentence of fine of Rs. 30/- with the direction that in default of payment of fine, the accused should undergo rigorous imprisonment for a period of 30 days. The learned District Magistrate points out that the failure of the Second Class Magistrate to award a substantive sentence of imprisonment is a flagrant violation of the mandatory provision contained in S.325 of the Penal Code and that the illegality committed by the Magistrate requires rectification.

2. In view of the clear and convincing evidence adduced by the prosecution, it cannot be said that the learned Magistrate went wrong in reaching the conclusion that the accused is. guilty of the offence charged against him.

The accused is seen to have caused a series of injuries on Pw.1 by beating him with a stick on the head and on the hand. The wound certificate, Ext. P-4, contains a description of these injuries. Two of the injuries had resulted in a fracture of the bone. Thus, it is clear that the accused is guilty of having voluntarily caused grievous hurt to Pw.1 and that the accused was properly convicted under S.325 of the Penal Code. An accused, convicted under that section, "shall be punished with imprisonment of either description for a term which may extend to 7 years and shall also be liable to fine". In view of the mandatory provision contained in the section, the Court is bound to award a sentence of imprisonment to the accused convicted under the section A sentence of fine in addition to the term of imprisonment may also be awarded. But the Court has no option to dispense with the sentence of imprisonment and to award the sentence of fine only. To do so would be a flagrant violation of the mandate contained in the section. In view of the mandate contained in the section, the discretion of the Court is limited to a decision on the question of the quantum of the sentence to be awarded. In the present case, the learned Sub-Magistrate was acting illegally in awarding a sentence of fine only to the accused, without awarding a sentence of imprisonment. This illegality has to be set right by this court in the exercise of its revisional jurisdiction under S.439 of the Code of Criminal Procedure.

3. On behalf of the accused, it is urged that this court may not exercise its revisional jurisdiction under S.439 of the Code of Criminal Procedure in awarding a sentence of imprisonment to the accused in this case. Reliance was also placed on the decisions in Ramachander Rai v. Ram Beas Tawari (A. I. R.1933 Patna 179), Bishesher v. Rex (A. I. R.1949 Allahabad 213) and in State v. Kangan Suba (A.I.R.1953 Punjab 201) to show that under similar circumstances, the respective High Courts declined to interfere in revision for setting right the illegality committed by Magistrates, in not awarding the proper sentence, as required by the section under which the accused persons were convicted. In all these cases, it was definitely found that the Magistrates had committed an illegality in the award of sentence. All the same, the learned judges of the High Courts took the view that in the circumstances of those cases, no interference was called for by way of the exercise of the revisional jurisdiction under S.439 of the Code of Criminal Procedure. With all respect, we have to differ from that view. No doubt, interference in revision under S.439 is a matter of discretion vested in the High Court. It is obvious that the discretion contemplated by the section is a judicial discretion. Where the High, court is satisfied that the Subordinate Court has committed an illegality, the proper course to