Govinda Pillai, J.
1. The case was referred to this Court by the District Magistrate, Quilon for appropriate orders. The letter referring the case gives the necessary facts required for the disposal of the reference and it is reproduced below:
I am forwarding herewith the original records in C. C. No. 601 of 1953 on the file of the Stationary First Class Magistrate, Kottarakara and to inform you as follows:
The Taluk Second Class Magistrate, Kottarakara entertained the case as C. C. No. 118 of 1953 and after closing the prosecution evidence framed charges under Sections 457 and 380, I, P. C. and finding that the accused has to receive a punishment more severe than that which he is empowered to inflict, forwarded the accused and the original records to the Sub-Divisional Magistrate, Quilon under Section 349 of the Criminal Procedure Code. The Sub-Divisional Magistrate, Quilon filed the case as C. C. No. 69 of 1953 and subsequently forwarded the original records and the accused to the Stationary First Class Magistrate, Kottarakara since a Stationary First Class Magistrate's Court was established at Kottarakara with effect from 1-4-1953 by abolishing the Taluk Second Class Magistrate's Court functioning in the locality. The Stationary First Class Magistrate, Kottarakara on receipt of the records filed the case as C. C. No. 60 of 1953 on his file and disposed of the case on the first day of the hearing by convicting the accused and sentencing him to undergo rigorous imprisonment for a period of (1) one year. An independent judgment according to Section 367 of the Criminal Procedure Code has not been written up by the Magistrate.
Section 349 of the Criminal Procedure Code creates an exception to the rule in that it provides that the magistrate to whom proceedings are submitted has to pass such judgment, sentence or order as he thinks fit. The jurisdiction to deal with proceedings under this section is conferred upon the District Magistrates and Sub-Divisional Magistrates alone and not to any Other Magistrates. Further, a Sub-Divisional Magistrate to whom a case is forwarded under this section cannot transfer it to a magistrate who is not empowered to act under the section. The powers vested in a Sub-Divisional Magistrate under Section 192 of the Criminal Procedure Code are not applicable to proceedings referred to by a Subordinate Magistrate under Section 349 of the Criminal P. C. The action of the Sub-Divisional Magistrate, Quilon in transferring the case to the Stationary Magistrate, Kottarakara and the disposal of the case by the latter is improper and illegal,
I, therefore, request you to place the matter before the Honourable Judges of the High Court for appropriate orders by setting aside the order of the Stationary Magistrate, Kottarakara. The accused is undergoing the term of imprisonment in the Central Prison, Trivandrum.
2. Section 349, Criminal P. C. allows a Magistrate of the Second or Third class to submit his proceedings and forward the accused to the District Magistrate or Sub-Divisional Magistrate, to whom he is subordinate, if he is of opinion, after hearing the evidence for the prosecution and the accused 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. The District Magistrate or Sub-Divisional Magistrate, who receives the case, is to pass judgment after having due regard to Sub-section (2) of the section. He can neither send back the case to the referring Magistrate nor transfer it to the file of some other Magistrate. There is no provision for the same in the Criminal Procedure Code. The cases reported in - 'In re Sudalamada Kudumban' AIR 1942 Mad 281 (2) (A); - 'In re Ponnuswamy Naidu', 36 Mad 470 (B); - 'Queen Empress v. Havia Tellapa', 10 Bom 196 (C) and - 'Emperor v. Thakur Dayal', 26 All 344 (D), have also taken this view. So the action of the Sub-Divisional Magistrate in sending the case to the First Class Magistrate was against the provisions of law and hence illegal.
3. The said section allows the District or Sub-Divisional Magistrate alone to deal with the cases referred by the Second or Third Class Magistrate. The Sub-Divisional Magistrate could not transfer to any other Magistrate the referred case under Section 528, Criminal P. C. Vide - 'Emperor v. Vinayak Narayan' AIR 1914 Bom 217 (E). The order of transfer was, therefore, passed by the Sub-Divisional Magistrate without jurisdiction, and it is illegal. The First Class Magistrate himself has not passed a proper judgment. The Sub-Divisional Magistrate had to consider the case and write a judgment as contemplated in Section 367, Criminal P. C. The referee Magistrate is under the obligation to hear arguments from the pleaders present and to write a judgment giving his reasons for his order as in an ordinary calendar case tried entirely by him. Vide - 'In re Pedda Kambi Reddy AIR 1943 Mad 345 (F); - 'Khoda Bux Mal v. Ohadali Mai' AIR 1949 Cal 308 (G); - 'Lallu Ram v. Emperor' AIR 1939 Oudh 35 (H) and - 'Thakur Singh v. Emperor' AIR 1919 Pat 290 (1) (J).
Thus the transfer to the First Class Magistrate was illegal and the judgment pronounced by the First Class Magistrate was without jurisdiction. The judgment itself is not in accordance with law. In view of the several illegalities in this case we would have set aside the judgment and ordered fresh trial, but it is reported, that the accused is dead. So we have only to point out the Illegal and irregular procedure followed in the case for guidance and the reference is answered accordingly.