Pagla Kahar and Another vs Emperor

Imam, J.—The petitioners Pagla Kahar and Ramkishun Dusadh were sentenced to nine months'' rigorous imprisonment u/s 380, Penal Code, for having committed theft in the house of one Govind Singh in village Pachmahla, Police Station Barh. The case was before a second class Magistrate for trial who examined witnesses and at the conclusion of the recording of the evidence came to the view that the case of some of the accused who were on trial along with the petitioners deserved a higher sentence than he could impose, having regard to previous convictions against them, and referred the proceedings u/s 349, Criminal P.C., to the Sub-Divisional Magistrate. The Sub-Divisional Magistrate having perused the evidence and having heard arguments came to the, conclusion that the prosecution evidence against the petitioners was satisfactory and accordingly convicted them under Sections 457 and 380, Penal Code. Against their conviction the petitioners filed an appeal before the Sessions Judge of Patna who dismissed it after a full hearing. At the time of the admission of this application in this Court I was of the opinion that the case against the petitioners was concluded by findings of fact. It was, however, urged at the time of the admission that the second class Magistrate, when referring the proceedings to the Sub-Divisional Magistrate u/s 349, Criminal P.C., instead of recording his opinion had actually convicted the accused, which was entirely illegal. Reliance was placed upon the decision of this Court in Prayag Gope and Others Vs. The King-Emperor, Having regard to this decision of a Division Bench of this Court, there was no alternative but to admit the application for further consideration of the point raised.

Mr. Jagdish Narain Varma, appearing for the petitioners before us, has not seriously urged that there was any such illegality in the proceedings as to vitiate them. In Emperor Vs. Narayan Dhaku Bhil, the Bombay High Court recognised that it was wrong on the part of a Magistrate to record a conviction when he was making a reference u/s 349, Criminal P.C. But if he did do so, it would be treated as a nullity and did not require formal quashing. If I may say so, I respectfully agree with the decision of the Bombay High Court. What a Magistrate is required to do u/s 849, Clause (1), Criminal P.C., is to record his opinion and submit the proceedings. The very act of submitting the proceedings to the Sub-Divisional Magistrate in this case is enough, in my opinion, to show that in the opinion of the second class Magistrate the accused were guilty of the offences charged. If in expressing his opinion the second class Magistrate has used the expression that he convicted the accused, the language used is erroneous, but I cannot regard it to mean that he is convicting the accused of the offence. The second class Magistrate made it quite clear in his "order that the entire proceedings were being submitted to the Sub-Divisional Magistrate. We have also to remember that Magistrates with powers of second and third class may use expressions which are unhappy, but I do not think there is anything in Section 349 to suggest that, if the Magistrate states that he convicts an accused, that necessarily the proceedings u/s 349 are vitiated and the reference to the Sub-Divisional Magistrate under that section is illegal.

Reading the order as a whole, I am of the opinion that the second class Magistrate in this case meant no more than this that in his opinion the accused were guilty, and such of those as had previous conviction, deserved a higher sentence than he could inflict and accordingly he was making a reference u/s 349. Even in the decision of this Court in Prayag Gope and Others Vs. The King-Emperor, the conviction of the accused was not set aside but the sentence was reduced having regard to the circumstances of that case. I think one may well be justified in saying that at best it was irregular for the second class Magistrate to have stated that he convicted the accused, but it is an irregularity which does, not vitiate the proceedings.

On the facts, the matter is concluded by findings of fact, and having read the judgments of the Courts below once again I can see no reason to reconsider the view which I took at the time of the admission of this application that there was anything in the judgments which would justify interference on facts. The question of sentence was urged on behalf of the petitioners. As I. have already stated, they have been sentenced to nine months'' rigorous imprisonment for theft in a house. u/s 880 the offence is punishable up to seven years'' rigorous imprisonment, and in this particular case not less than Rs. 5000 worth of property was stolen by the thieves who invaded; the house of Govind Singh. I do not think that the sentence of nine months'' rigorous imprisonment is at all severe in the circum. stances.

It was, however, urged that for a considerable period before the conviction the petitioners had been in custody. I am inclined to think that probably that is the reason why the Sub-Divisional Magistrate imposed a sentence of nine months only for this serious offence.

There is no reason to interfere with the sentence in this case and the application is dismissed.

Shearer, J.

I agree.