Piramanayaga Pandaram and Others

Byers, J.—This reference has been made by the Additional District Magistrate of Tinneveliy at the instance of the Sub-Divisional Magistrate

of Shermadevi under the following circumstances. In Calendar Case 443 of 1942, forty-one persons were convicted by the Stationary Second

Class Magistrate of Nanguneri of offences punishable u/s 147, Section 380 and various other sections of the Indian Penal Code of these, twenty-

eight were sentenced to three months'' rigorous imprisonment and the remaining thirteen were sent to the Sub-Divisional Magistrate u/s 562 (1) of

the Code of Criminal Procedure as they were adolescents, whom the Sub-Magistrate considered should be dealt with accordingly. The Sub-

Divisional Magistrate considered that it was not open to the Sub-Magistrate to sentence some of the accused to imprisonment and refer the

remainder for the application of Section 562 of the Code relying for his view on the decision in Emperor v. Narayanaswami Naidu (1936)

M.W.N. 1351. The learned District Magistrate when making the reference expresses his disagreement with the Sub-Divisional Magistrate because

in his view Section 349 of the Code has no application to a case which falls exclusively within Section 562 and the connected Section 380 of the

Code. In the case referred to it was held that all the accused should have been forwarded to the'' superior Magistrate in circumstances similar to

these in accordance with the provisions in Section 349 (1) (a) of the Code. There is a fundamental difference between the position of accused

persons dealt with u/s 349 and Section 562 of the Code of Criminal Procedure. Under the former section they are sent by the Court to the

superior Magistrate with an expression of the Court''s opinion that they are guilty and it is then the duty of the superior Magistrate to pass judgment

upon them according to law. u/s 562 the accused persons come before the superior Magistrate as convicted persons and he has no other option

but to proceed u/s 380 of the Code and pass sentences upon them in accordance with his powers. It has been held in the case of Venkataswami

Naicken v. Emperor (1942) M.W.N. 123 a superior Magistrate entertaining a reference u/s 562 of the Code has no powers of acquittal, although

he may make further inquiry in order to decide upon the proper order or sentence to be imposed. With all respect I consider that Section 349 (1)

(a) has no application to the procedure u/s 562 of the Code. There is therefore no necessity for any interference with the order passed by the

Stationary Sub-Magistrate u/s 562 (1) and the reference is accordingly rejected and the Sub-Divisional Magistrate directed to dispose of the case

in accordance with law. The order passed by the learned District Magistrate suspending the sentences of imprisonment upon the twenty-eight

persons is vacated and they will be ordered to surrender and work out the remainder of their sentences.