The Public Prosecutor vs Sheik Masoom and Others

Kuppuswami Aiyar, J.—This is an appeal against the order of acquittal of the Sub-Divisional Magistrate of Narasaraopet in C.C. No. 109 of 1945 on his file. The four accused were originally tried by the Sub-Magistrate of Narasaraopet for offences punishable u/s 380, Indian Penal Code, so far as accused 1 and 2 were concerned and for offences punishable under Sections 410 and 411 of the Indian Penal Code, so far as accused 3 and 4 were concerned, in respect of the same articles. They were all tried together and found guilty of the offences, with which they were charged; but as the first accused was an old offender who had been convicted for an offence under the provisions of Chapter XVII of the Indian Penal Code, there was also a charge against him u/s 75 of the Indian Penal Code. The Magistrate felt that he could not award the proper sentence on the first accused and so sent the papers to the Sub-Divisional Magistrate of Narasaraopet u/s 349 of the Criminal Procedure Code. This Magistrate acquitted all the accused, and it is against this order of acquittal that this appeal has been filed.

It is rightly urged for the Crown that the Sub-Divisional Magistrate, Narasaraopet, had no jurisdiction to try the case and acquit the accused inasmuch as the Sub-Magistrate ought to have committed the accused to sessions u/s 348 of the Criminal Procedure Code, if he thought that he could not pass the adequate sentence and should not have taken action u/s 349. The Sub-Divisional Magistrate, Narasaraopet, could have jurisdiction to acquit the accused only if the papers could have been sent to him u/s 349. Section 349 is a general section which applies to all offences whereas Section 348 applies only to persons who have been convicted of an offence punishable under Chapter XII or Chapter XVII of the Indian Penal Code in any prior case, and according to Section 348(2),

When any person is committed to the Court of Session or High Court under Sub-section (1) any other person accused jointly with him in the same inquiry or trial shall be similarly committed) unless the Magistrate discharges such other person u/s 209.

In this case the Magistrate knew that the first accused had been convicted of an offence punishable under Chapter XVII of the Indian Penal Code, and he also knew that none of the accused could be discharged but would have to be convicted. At this stage he should not have sent the papers u/s 349 of the Criminal Procedure Code to the Sub-Divisional Magistrate. The proper course for him would be to commit the accused to Sessions. This is also clear from Rule 95 of the Criminal Rules of Practice. As the Magistrate therefore had no jurisdiction to send the papers and should have committed the accused to Sessions u/s 348, the Sub-Divisional Magistrate had no jurisdiction to acquit the accused.

I accordingly set aside the order of acquittal and send the papers to the Sub-Magistrate of Narasaraopet for taking action u/s 348 of the Criminal Procedure Code. If the Magistrae who tried the case originally is not there, there may have to be a de novo enquiry.