The main legal point established in the judgment is that a sentence of imprisonment till the rising of the Court is within the meaning of the Penal Code and the Code of Criminal Procedure.

Alfred Henry Lionel Leach, C.J.

1. The accused was found guilty by the Sessions Judge of Tinnevelly of an offence under Section 323 of the Indian Penal Code and was sentenced to imprisonment till the rising of the Court. Under the provisions of Section 439 of the Code of Criminal Procedure, Byers, J., called upon the accused to show cause why a sentence should not be passed upon him according to law. In In re Kunhi Baud (1928) 56 M.L.J. 550, Jackson, J., had expressed the opinion that such a sentence was not in accordance with law and in In re Ramalingayya AIR1942Mad723 , Horwill, J., had said the same. The question whether such a sentence is a sentence passed according to law has been fully argued before us and for reasons which we shall state we consider that these decisions must be overruled.

2. Neither the Indian Penal Code nor the Code of Criminal Procedure directs where a sentence of imprisonment shall be served. In most of the punishment sections to be found in the Indian Penal Code only the maximum period of imprison ment is stated, but in a few sections which related to offences of a very serious nature a minimum sentence is fixed. For instance, the minimum sentence for murder is transportation for life and for robbery or dacoity with attempt to cause death or grievous hurt it is seven years imprisonment. Unless the punishment section fixes a minimum the Court has full discretion to pass a sentence of imprisonment for any period less than the maximum, for instance, for five minutes if this would fit the offence.

3. In the well-known case of Bird v. Jones (1845) 7 Q.B. 742 : 115 E.R. 668, the question of what amounted to imprisonment was fully discussed. Coleridge, J., quoted the dictum of Coke, that :

every restraint of the liberty of a free man will be an imprisonment, although he be not within the walls of any common prison, and Williams, J., quoted Blackstones statement that:

every confinement of the person is an imprisonment, whether it be in a common prison, or in a private house, or in the stocks, or even by forcibly detaining one in the public street." (3 B.L.C. 137.)

The definition of imprisonment to be gathered from these judgments was accepted by this Court in P. Narasayya Pantulu v. Capt. R.A.C. Stuart (1865) 2 M.H.G.R. 396. It was there stated that the retaining of a person in a particular place or the compelling of him to go in a particular direction by force of an exterior will overpowering or suppressing in any way his own voluntary action was an imprisonment on the part of the person who exercised that exterior will. Therefore, a direction by the Court that a person shall be confined in the Court premises till the Court rises constitutes imprisonment and in our judgment, imprisonment within the meaning of the Penal Code and the Code of Criminal Procedure.

4. In In re Kunhi Bava (1928) 56 M.L.J. 550, a person was convicted under Sections 193, 196 and 471 of the Indian Penal Code and was sentenced to imprisonment till the rising of the Court and to a fine of Rs. 300. Dealing with the adequacy of this sentence, Jackson, J., said :

When the statute lays down that for a certain offence, as for that under Section 471 of the Indian Penal Code or under Section 193, the punishment shall be imprisonment, it means that the offender shall go to jail, and imprisonment till the rising of the Court is a clear evasion of that intention.

Possibly in rare cases when the offence is obviously technical, a Court may be justified in taking the extreme step of evading the statute which it is appointed to administer; but on the learned Judges own showing, this was not such a case.

If the learned Judge intended to lay down that where a person is convicted of an offence under any of these sections the Indian Penal Code contemplates that ordinarily he shall be sentenced to imprisonment in jail, but where the offence is of a very technical nature the Court would be justified in passing a nominal sentence of imprisonment we could u