1. In this reference we are concerned with three cases, where an accused person was charged with offences under as. 380, 457 and 411, Indian Penal Code, which a Second Class Magistrate sent up to the Sub-Divisional Magistrate under Section 349 Criminal Procedure Code. Under that section the Magistrate who sends up a case is merely empowered to record his opinion that the accused is guilty, and that he ought to receive a punishment different in kind from, or more severe than, that which such Magistrate is empowered to inflict. In the present cases the Magistrate went a little further, and said that he convicted the accused in each of the three cases under Section 411, Indian Penal Code.
2. In Queen-Empress v. Mahadu (1888) C C. 387 it was held in a similar case that the conviction recorded by the Second Class Magistrate was illegal; and the conviction was reversed and the Second Class Magistrate was directed, after recording his opinion, to proceed according to law. The District Magistrate of Nasik, having regard to this ruling, is of opinion that, as the accused has already been convicted, the Sub-Divisional Magistrate was precluded from hearing the cases; and in order to enable the Sub-Divisional Magistrate to pass orders, he proposes that the orders of conviction should be quashed.
3. We agree that they should be quashed, and do so accordingly. At the same time it may be pointed out that since the ruling in Queen-Empress v. Mahadu, Section 215, Sub-section (2) and Section 258, Sub-section (2) have been amended so as to run : 'Where the Magistrate does not proceed in accordance with the provisions of Section 849,..he shall, if he finds the accused guilty, pass sentence upon him according to law.' Those sub-sections, as now worded, can be read as prohibiting the Magistrate from passing any sentence in a case which he deals with under Section 349, Criminal Procedure Code, but as not necessarily prohibiting him from finding the accused guilty. The conviction will not of course be one that has any legality in the sense of prohibiting the Sub-Divisional Magistrate from dealing with the case under Section 349, Criminal Procedure Code, or as constituting a conviction which would prevent any further trial under Section 403, Criminal Procedure Code. In effect it is mere surplusage, which reiterates the opinion of the Magistrate that the accused is guilty of a particular offence. And we think that in future similar cases there is no legal objection to the conviction being treated as such surplusage and as a legal nullity, so that the Magistrate to whom the case is sent, can proceed with it, without a reference to this Court for the purpose of having the conviction formally quashed.
4. I agree.