J. P. DESAI, J. ( 1 ) XXX xxx xxx ( 2 ) XXX xxx xxx ( 3 ) XXX xxx xxx ( 4 ) XXX xxx xxx ( 5 ) XXX xxx xxx ( 6 ) XXX xxx xxx ( 7 ) BEFORE parting with this case I would like to observe here the learned Judicial Magistrate has taken into consideration the fact that the complainant identified the accused when he was in police custody. The evidence of identification in presence of police or in police custody is on the face of it in-admissible because it is barred by Section 162 Cri. Pro. Code 1973 Identification is a statement by gesture and that way it is hit by the provisions of Section 162 of the Code. The learned Judicial Magistrate should not have taken this aspect into consideration and should not have even referred to that aspect while discussing the evidence. The learned Judicial Magistrate did not consider the question whether though the panch had not supported the prosecution the evidence of the Police Officer should be accepted or not. He has not at all discussed the evidence of the P. S. I. Sardarsing so far as this aspect is concerned. He should have applied his mind to this aspect and recorded a finding one way or the other. The learned Additional Sessions Judge has of course considered this aspect and has given reasons for relying upon the P. S. I. at para 15 of his judgment. ( 8 ) IT appears from the judgment of the learned Judicial Magistrate that he heard the accused on the question of sentence but it appears that only the Advocate made submissions before him. It would have been better if the learned Judicial Magistrate had heard the accused himself so far as the question of sentence is concerned. He should in fact have put a question to him as to whether he had anything to say as regards the sentence and recorded that question below the statement of the accused recorded under Section 313 of the Code and should have recorded the reply given by the accused. It was not proper for him to have rest contented with submissions made by the learned advocate for the accused before him. The learned advocate Mr. It was not proper for him to have rest contented with submissions made by the learned advocate for the accused before him. The learned advocate Mr. Shethna made a grievance in this regard but ultimately looking to the fact that nor contention was raised before the learned Additional Sessions Judge not in the memo of revision and because the accused was heard through the advocate Mr. Shethna did not pursue this aspect any further. ( 9 ) I may also mention here that the learned Judicial Magistrate has convicted the accused-appellant of the offences punishable under Sections 379 and 356 I. P. C. He has recorded so to say a combined sentence for both the offences. He should have recorded a separate sentence for the offence under Section 356 I. P. C. or should have stated that he was not passing any separate sentence for the said offence. Of course he could have imposed sentence for both the offences and ordered that the substantive sentences should run concurrently. But the omnibus order passed by the learned Judicial Magistrate and confirmed by the learned Additional Sessions Judge without any modification would show that the accused had to undergo sentence for both the offences separately and had to pay the fine of Rs. 100/- for each of the offences. I would therefore like to clarify that the sentence imposed by the learned Judicial Magistrate and confirmed by the learned Additional Sessions Judge should only be restricted to the offence punishable under Section 379 I. P. C. and no separate sentence should be deemed to have been imposed for the offence punishable under Section 356 I. P. C. ( 10 ) XXX xxx xxx petition dismissed summarily. .