1. This reference has been made by the Sessions Judge, Ganjam-Nayagarh on a difference of opinion between him and the Additional District Magistrate, Ganjam, as to the forum in which the appeal of the accused persons will lie.
2. The short facts are that four persons were tried by a Magistrate, III Class in C. C. 18 of 1952 and convicted of the offence of trespass, mischief, and assault. The trying Magistrate awarded sentences of fine on three of the accused persons and referred the case of the fourth accused to the Sub-divisional Magistrate in the following terms:
'Accused K. Damodar is a juvenile offender. Adequate sentence will be passed by a competent Magistrate, if he prefers to convict him. Send the file to the Sub-Divisional Magistrate for the purpose.'
On receipt of the records, the Sub-Divisional Magistrate passed the following order: 'Seen the judgment of the trying Magistrate, Mr. S. N. Misra. As the offence is petty and the accused K. Damodar is only a small boy of about 12 years I would let him off with a warning under Section 562 (1-A), Cr. P. C.' All the four accused who had been convicted by the Magistrate III Class, filed appealsagainst their conviction, in Cr. Appeals Nos. 6, 7, 8 and 9, before the Additional District Magistrate. But no appeal was filed against the order of the Sub-divisional Magistrate passed under Section 562 (1-A). The Additional District Magistrate held that so far as the order passed by the Sub-divisional Magistrate was concerned, an appeal lay to the Court of Session and not to his Court. He also held that under Section 408-B of the Cr. P. C. all the appeals should be heard by the superior Court, namely, the Court of Session, and accordingly referred all the four appeals to the learned Sessions Judge, Ganjam-Naya-garh, for disposal.
The learned Sessions Judge is of opinion that the procedure adopted by the Additional District Magistrate is not authorised by law and that he should have dismissed the appeal preferred by the juvenile offender as he had no jurisdiction to entertain that appeal. He could have disposed of only the other three appeals. The second point on which there has been a difference of opinion between the Additional District Magistrate and the Sessions Judge is whether the appe'al of the juvenile offender was not premature as he preferred only an appeal against his conviction by the III Class Magistrate and not against the sentence passed by the Sub-divisional Magistrate.
On this question the learned Sessions Judge is of opinion that an appeal could lie only after the sentence had been in fact passed by the Sub-divisional Magistrate and that the appeal filed by the juvenile offender K. Damodar against the order of the trying Magistrate is premature. The learned Sessions Judge, however, has pointed out that in -- 'In re Abdul Karim', AIR 1948 Mad 16 (A) a single Judge of that High Court, had taken a different view. Yahya Ali J., while realising that the point involved was not altogether free from difficulty, held that an appeal may lie against an order of conviction only, although no sentence has been passed.
After giving my best consideration to the report of that case I find myself unable to agree with the view taken by the learned Judge who held that the conviction is complete, even without a sentence, for the purpose of exercising the right of appeal. The learned Judge appears to have been influenced in entertaining that opinipn by the procedure laid down in Section 381 of the Cr. P. C. (Section 381, I. P. C. referred to in the judgment appears to be a mistake.)
3. In the case of a conviction for murder the Court of Session passes a sentence of death though it is subject to confirmation by the High Court, and therefore an appeal lies at the instance of the accused who is both convicted and sentenced. But a mere conviction, unaccompanied by a sentence, does not appear to be in accord with the procedure laid down in the Penal Code which prescribes a sentence for every offence. The case reported in -- 'AIR 1948 Mad 16' (A) does not appear to have been followed in any other reported decision and, as the learned Judge has himself pointed out, his view is based on first impressions.
4. But apart from the question whether an appeal lies against a mere conviction (unaccompanied fay a sentence), the question at issuehere is whether the procedure adopted by the trying Magistrate and the Additional District Magistrate is warranted by law. Section 349 of the Cr. P. C. provides for cases where the Magistrate cannot pass a sentence, sufficiently severe, or where he is of opinion that the person convicted should receive punishment, different in nature from that which such Magistrate is empowered to inflict. In the present case, as one of the accused persons was a juvenile offender the Magistrate thought that he should receive a sentence which he was not competent to pass, namely, a sentence under Section 562 of the Cr. P. C. The Sub-divisional Magistrate was, therefore, right in treating the reference made to him by the Magistrate as one under S, 349 and he accordingly passed a sentence of warning under Section 562. The proviso to Section 562 (1) lays down that, in such cases, where the trying Magistrate is of opinion that the powers conferred by that Section should be exercised, he shall record his opinion to that effect and submit the proceedings to a Magistrate, First Class, or to the Sub-divisional Magistrate who shall dispose of the case in the manner provided in Section 380. Section 380 empowers the Subdivisional Magistrate to
'make further enquiry, if he considers it necessary, and pass such sentence or make such order as he may have passed or made it the case had originally been heard by him.'
In exercise of this power the Sub-divisional Magistrate acted under S. 562 (1-A) and released the accused after due admonition. The trying Magistrate was, therefore, right in referring the case under Section 349 (1) to the Sub-divisional Magistrate as one of the accused was a juvenile offender and deserved a sentence under Section 562. But in doing so he failed to notice the provision in Section 349 (1-A) which runs as follows:
'When more accused than one are being tried together and the Magistrate considers it necessary to proceed under the Sub-section (1), in regard to any of such accused, he shall forward 'all' the accused who are in his opinion guilty, to the District Magistrate or the Sub-divisional Magistrate.'
If only the trying Magistrate had made a reference to Section 349, he would not have committed an irregularity and sent up only one of the accused to the Subdivisional Magistrate. Even the Subdivisional Magistrate does not appear to have read the Section when he proceeded to act under Section 380 and passed the sentence under Section 562. He should have called upon the trying Magistrate to send up the other three accused also, before he proceeded to deal with the case of the juvenile offender. This was the view taken in -- 'Emperor v. Narayana Swami', 1936 Mad WN 1351 (B) by Pandurang Rao J. But in a later case of the same Court reported in -- 'In re Piramanayaga Pandaram', AIR 1943 Mad 390 (C) Byers J. held that there was a fundamental difference between the position of accused persons dealt with under Sections 349 and 562, Cr. P. C.
According to the learned Judge, the difference is this: that under Section 349 the trying Magistrate merely expresses his opinion that the accused are guilty, while under Section 562 the accused persons come before the superior Court as convictedpersons and he has no other option but to proceed under Section 380 of the Code. But it appears to me that the view taken by the learned Judgecannot be supported in view of the language of the proviso to Section 562 (1) which expressly covers a case where the Magistrate who convicts a person is of opinion that the powers conferred by Section 562 (2) should be exercised. In such a case, the proviso says that he shall record his opinion to that effect and submit the proceedings to a Magistrate of the 1st Class or to a Sub-divisional Magistrate. This proviso is based on the view that the conviction would not be complete unless and until a sentence is passed by the superior Court and the conviction amounts to no more than the recording of an opinion that the accused persons are guilty.
It may be that the superior Magistrate entertaining a reference under Section 562, Criminal P. C. has no power of acquittal, but the proviso to that Section is explicit and leaves no room for doubt, that person accused of an offence who is sent to a superior Magistrate under Section 349 of the Code is held guilty by the referring Magistrate. There would be no need for a reference to a superior Magistrate unless the trying Magistrate holds the accused guilty. I am therefore unable to subscribe to the view taken by Byers J., in the case cited above. This view is opposed to the earlier as well as the later decision of the Madras High Court. In -- 'Emperor v. Mottayan', 1941. Mad WN 768 (D), Lakshmana Rao J. took the view that all the accused persons should be forwarded to the Sub-Divisional Magistrate under Section 349, Cr. P. C.
In another case of the same Court reported in -- 'Murugesa Koundan v. Emperor', 29 Cri LJ 624 (Mad) (E), Devadoss J. took the same view. This case was followed in a later case of the same High Court (which was a Division Bench case) reported in -- 'In re Subbai Goundan', 1945 Mad WN 182 (F), though in that case the reference made was one under the Madras Children Act and not one under Section 562, Cr. P. C. and have released the second accused after admonition. The view taken by Byres J. was expressly dissented from in --'In Re Munisami Palli', AIR 1948 Mad 86 (G) by Yahaya All J.
5. It is pointed out that there is nothing repugnant in the language of Section 562 and Section 380 which would have prohibited, the trying Magistrate from sending up all the accused to a superior Magistrate and that the principle of Section 349 (1A) is applicable even to a case falling under Section 562. In -- 'Emperor v. Dodo', AIR 1926 Sind 48 (H), a Division Bench of the Sind Judicial Commissioner's Court, held that all the accused should be forwarded to the Sub-Divisional Magistrate if the case of one of them is referred under Section 349, Cr. P. C. to him.
6. On a review of the authorities I have no hesitation in holding that the procedure adopted by the trying Magistrate is illegal. Sub-section (1A) of Section 349 was introduced by the Code of Criminal Procedure Amendment Act of 1923 and was intended to secure identity of treatment to all accused persons and to prevent conflict of jurisdiction. It is unnecessary toconsider whether in a case arising under Section 562 the Magistrate is competent to acquit or whether the referring Magistrate is bound to send up all the accused. But there can be no doubt that there is nothing in that Section which would prevent a Magistrate acting under Section 562, Cr. P. C. to send up all the accused persons. On the other hand, if the Magistrate sends all the accused, for the consideration of the superior Court, there would be no conflict of jurisdiction such as has arisen in this case, and both Sections 562 and 349 (1-A) can be harmonised.
7. I would, therefore, accept the reference, set aside the order of sentence passed by the trying Magistrate on the three adult accused persons as well as the order of sentence passed on the juvenile offender K. Damodar by the Magistrate First Class and direct that the case of all the four accused persons should be considered by the Magistrate First Class and dealt with by him according to law. The criminal appeals preferred by these accused should be held to be incompetent and returned to the appellants.
8. The reference is answered accordingly.
9. I agree.