In Re: P.R. Joseph and Others

Somasundaram, J.—This is a reference by the learned Sessions Judge of South Malabar under the following circumstances. The four

accused were tried by the Second Class Magistrate, Fort Cochin, for an Offence u/s 323, I. P. C. The Magistrate found all of them guilty of the

offence u/s 323, I. P. C. and sentenced accused 1 to a fine of Rs. 50, in default to two months rigorous imprisonment. In respect of the other

accused, i.e., accused 2 to 4 he was of opinion that they should be dealt with u/s 562 (1-A) Criminal P. C. and as he was not empowered to pass

orders under the above section, he sent up the records to the sub-Divisional Magistrate, Port Cochin for action. The Sub-Divisional Magistrate,

Fort Cochin, let off the accused with an admonition under Clause (1-A) of Section 562, Criminal P. C. Accused 2 to 4, who were thus let off with

an admonition, then preferred an appeal in C. A. No. 10 of 1952 to the Sessions Court, South Malabar. At the time of the hearing of the appeal,

the Local Public Prosecutor raised an objection that the Second Class Magistrate was not competent to send to the Sub-Divisional Magistrate the

case relating to accused 2 to 4 alone and that the entire records including the case of accused 1 should have been sent to the Sub-Divisional

Magistrate. This objection was apparently based on a decision of this court in -- ''Emperor v. Narayanaswami Naidu'', 1936 Mad WN 235 (A).

The learned Sessions Judge agreeing with the contention of the Public Prosecutor has made a reference to this court u/s 438, Clause (1) Criminal

P. C. and has asked for appropriate orders to be passed. In his letter of reference, he refers to two other decisions of this court, which are

reported in -- '' Piramanayaga Pandaram and Others, , and -- ''In re Munisami'', AIR 1948 Mad 86(C), and points out the conflict in authority.

The question now is whether in the circumstances of this case all the accused should have been sent up or only the case of those, who in the

opinion of the Second Class Magistrate are to be treated u/s 562, Clause 1-A, Criminal P. C. should be sent up. The argument that all the accused

must be sent up is based on the provisions of Clauses (1) and (1-A) of Section 349, Criminal P. C., which are as follows : (His Lordship after

quoting the provisions of the clauses proceeded to state:) This section has been interpreted by Pandrang Row J. in --''1936 Mad WN . 235(A), to

apply to cases like the present one, that is to say, that in such cases all the accused should be sent up. In that case, two accused were tried, the

first for an offence under Sections 498 and 379 I. P. C. and the second for an offence u/s 379 I. P. C. Both were found guilty, but the first

accused was sentenced to three months rigorous imprisonment and the case of the second accused was sent up to the Sub-Divisional Magistrate

for being dealt with u/s 562, Clause (1). Pandrang Row J. held that the procedure followed is opposed to the express provisions of the law

contained in Section 349(1-A) Criminal P. C. The convictions of both the accused were set aside and the Magistrate was asked to forward both

the accused to the Sub Divisional Magistrate, if he still thought that the second accused, should be dealt with u/s 562, Criminal P. C. A contrary

view is expressed by Byers J. in -- Piramanayaga Pandaram and Others, . In the above case, forty one persons were convicted by the Second

Class Magistrate, and of them twenty eight were sentenced to three months rigorous imprisonment and the rest were sent up to the Sub-Divisional

Magistrate for being dealt with u/s 562(1), Criminal P. C. The Sub Divisional Magistrate took the view relying on the decision in -- 1936 M WN

235(A); that all the accused should have been sent up. HE therefore asked the District Magistrate to make a reference to the High Court. In the

reference made by the District Magistrate, who did not agree with the view taken by the Sub-Divisional Magistrate, Byers J. held that Section 349

(1-A) Criminal P. C. has no application to the procedure u/s 562, Criminal P. C. and the order of the Second Class Magistrate was upheld.

The other decision referred to by the learned Sessions Judge --''AIR 1948 Mad 86(C)'', is a decision by Yahya Ali J. This does not touch the

point in question as it is a case in which the Second Class Magistrate tried two persons for the offence of theft and receipt of stolen property and

convicted both of them; and though he was of the view that one of them should be dealt with u/s 562, Criminal P. C. he sent up the case of both

the accused to the Sub Divisional Magistrate. Yahya All J. therein held that Section 562, Criminal P. C. read with Section 380, Criminal P. C.

does not prohibit sending up both the accused to the Sub Divisional Magistrate.

On a consideration of all the authorities and the relevant sections in Criminal P. C. I am of opinion that the view taken by Byers J. is the correct

one. Section 349(1-A) Criminal P. C. will apply only to cases which fall under Clause (1) of Section 349 Criminal P. C. Clause 1 of Section 349

Crl. P. C. will apply only to cases where the Magistrate is of opinion that the accused is guilty and that he ought to receive a ''punishment different

in kind'' (underlining is mine) or more severe than that which the Magistrate is empowered to inflict. The two circumstances, therefore, under which

he may send up the records are (1) the punishment to be inflicted must be different in kind from that which he is empower ed to inflict, (2) the

punishment must be more severe than that which he can inflict. In no other circumstances can he send up the records u/s 349, Criminal P. C.

This leads us to a consideration of the question as to what exactly the punishments are, which can be inflicted by the Second and Third Class

Magistrates and what are the other punishments, which, in the opinion of the Magistrate, the accused must receive, but which he cannot inflict. The

punishments to which the offenders are liable under the provisions of the Indian Penal Code are contained in Section 53 I. P. C. which are (1)

death, (2) transportation, (3) imprisonment, (rigorous or simple), (4) forfeiture of property, and (5) fine. To this must be added whipping which has

been introduced by the Whipping Act (Act IV of 1909) and sending young persons, youthful offenders and children, all under the Madras Children

Act to the various schools mentioned therein. Of the above punishments, those which the various magistrates can inflict are contained in Section

32, Criminal P. C. Under the above section a sentence of whipping can be passed only by the Presidency Magistrates and First Class Magistrates.

Similarly, under the Madras Children Act, among Magistrates, only the Magistrates mentioned in Section 4 of the Act can exercise the powers

conferred by the Act. A Magistrate with the Second or Third Class powers cannot inflict whipping, nor can a First Glass or Second Glass

Magistrate unless specially empowered exercise the powers under the Madras Children Act. Whipping is a punishment different in kind from

imprisonment or fine, so is sending young persons, youthful offenders or children to the various schools mentioned in the Madras Children Act. If

the Second or Third Class Magistrate not competent to inflict the above punishments is of opinion that any accused should receive the sentence of

whipping in accordance with the provisions of the Whipping Act or should be sent to one of the schools mentioned in the Madras Children Act,

then Clause (1) of Section 349 will apply and when there are more accused than one, Clause (1-A) of the section will apply. It is only to such

cases that Section 349, Criminal P. C., applies, in addition, of course, to cases where more severe punishment is to be inflicted.

Dealing with the accused under the provisions of Section 562, Clause (1) or Clause (1-A) is not a punishment, Section 562, Criminal P. C. itself

says chat the court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without

sureties, to appear and receive sentence when called upon during such period (not exceeding three years) as the court may direct and in the

meantime to keep the peace and be of good behaviour. Similarly in Clause (1-A) of Section 562, Criminal P. C., the court may, instead of

sentencing him to any punishment, release him after due admonition. It is clear, therefore, that, no sentence is passed when the accused is dealt with

under the provisions of Clause (1) or Clause (1-A) of Section 562, Criminal P. C. The order to be passed u/s 562, Criminal P. C., is therefore not

a punishment and the question of punishment different in kind does not arise in such a case. I may refer to a decision of the Nagpur High Court in -

- ''Baba v. Emperor'', AIR 1924 Nag. 37 (D), which takes the same view that an order u/s 562, Criminal P. C., cannot be said to be a

punishment. The decisions in -- ''Emperor v. Ghasite'', AIR 1914 All 543 (E) and -- Hira Lal Vs. Emperors, , also lend support to this view.

Apart from this, as pointed out by Byers J. Section 562, Criminal P. C., itself prescribes the procedure to be followed by the Second and Third

Class Magistrates, in whose opinion the provisions of Section 562 Criminal P. C., have to be applied to any accused. In such cases Section 380

Criminal P. C., applies.

The fundamental difference between Sections 349 and 380 Criminal P. C., is that in the former case, the Magistrate does not convict the

accused, but is of opinion only that he is guilty and the records are sent only with that opinion, whereas in the latter case, the superior Magistrate

receives the records after the Second or Third Class Magistrate convicts the accused of the offence with which he is charged, so that the superior

Magistrate cannot acquit him after receiving the records u/s 380 Crl. P. C. Vide the decision in -- In Re: Venkitaswami Naicken and Others, . In a

reference u/s 349, Criminal P. C., a superior Magistrate can pass any judgment, sentence or order as he thinks fit and according to law. The cases

of those who have to be dealt with u/s 562, Criminal P. C., fall u/s 330, Criminal P. C., and not Section 349, Criminal P. C.

The result is that the procedure followed by the Second Class Magistrate is correct. There is nothing irregular or illegal in the order passed by

the Sub-Divisional Magistrate regarding accused 2 to 4. The objection raised by the Public Prosecutor, South Malabar fails, and the appeal by the

accused in the C. A. No. 10 of 1952 will be taken on file by the learned Sessions Judge and disposed of according to law treating the procedure

followed by the Second Class Magistrate, Fort Cochin, as a proper one.

I am indebted to Mr. G. Gopalaswami for the assistance he rendered me in the case.