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P.S. Narayana Iyer Vs. Subramonia Iyer - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Case NumberCriminal Revn. Petn. No. 280 of 1958
Judge
Reported inAIR1960Ker167
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 346 and 346(2)
AppellantP.S. Narayana Iyer
RespondentSubramonia Iyer
Appellant Advocate T.N. Subramonia Iyer, Adv.
Respondent Advocate T.R. Padmanabha Iyer and; R. Krishnaswamy, Advs.
DispositionRevision dismissed
Cases ReferredSee Haidarsha Lalsha v. Dhondu Abaji
Excerpt:
- .....same magistrate and that the latter was therefore incompetent to try the case. a full bench of the madras high court has held in polur reddi v. munnusami reddi, air 1930 mad 765 that the terms of sub-section (2) of section 346 are wide to embrace a reference back of the case to the magistrate who originally submitted it. the bombay high court has taken a different view. following earlier decisions of the court, a division bench dissented from the view taken by the madras high court in the case cited above. see haidarsha lalsha v. dhondu abaji, air 1942 bom 84. it was held in that case that the district magistrate acting under section 346 had no power to revise the opinion of the subordinate magistrate and that the madras view was likely to lead to an embarrassing situation if the.....
Judgment:
ORDER

T.K. Joseph, J.

1. P.W. 1 in C. C. No. 4 of 1957 on the file of the Special Second Class Magistrate, Ponnani has preferred this criminal revision petition against the acquittal of the accused who were tried for offences under Sections 447 and 426 of the Indian Penal Code.

2. After the examination of P. W. 1 the trial Magistrate submitted the case to the District Magistrate with a report that as an offence under Section 506(2) was also disclosed the case should he transferred to the file of a Magistrate competent to try the case. The District Magistrate sent the case back to the trial Magistrate with a direction that he should proceed with the examination of the witnesses for the prosecution and that if he were of the opinion that a case triable only by a First Class Magistrate was made out, he should then submit the case to the District Magistrate under Section 346 of the Code of Criminal Procedure. After receipt of the records the trial Magistrate tried the case and found that the only offences disclosed were those under Sections 447 and 426 and that the accused were not guilty. He accordingly acquitted the accused andP. W. 1 has preferred this revision petition from the order of acquittal.

3. The only point raised in revision is that the District Magistrate was not competent to send back the case to the same Magistrate & that he should have sent the case to some other Magistrate. It was argued that the District Magistrate had no jurisdiction to send the case back to the same Magistrate and that the latter was therefore incompetent to try the case. A Full Bench of the Madras High Court has held in Polur Reddi v. Munnusami Reddi, AIR 1930 Mad 765 that the terms of Sub-section (2) of Section 346 are wide to embrace a reference back of the case to the Magistrate who originally submitted it. The Bombay High Court has taken a different view. Following earlier decisions of the court, a Division Bench dissented from the view taken by the Madras High Court in the case cited above. See Haidarsha Lalsha v. Dhondu Abaji, AIR 1942 Bom 84. It was held in that case that the District Magistrate acting under Section 346 had no power to revise the opinion of the subordinate Magistrate and that the Madras view was likely to lead to an embarrassing situation if the subordinate Magistrate remained unconvinced. With great respect I am inclined to follow the Madras view in preference to that of the Bombay High Court. The District Magistrate is not bound to accept the reference of the subordinate Magistrate in every case. The present- case was one taken on a police report according to which the acts alleged to have been committed by the accused did not constitute an offence under Section 506(2). In order to make the offence more serious, P. W. 1 alleged that an offence under Section 506(2) was also committed but the rest of the evidence did not support his case. Following the Madras view I hold that the District Magistrate had jurisdiction to send the case back to the Magistrate, who made the reference to him.

4. No other point arises in this revision petition. The criminal revision petition is therefore dismissed.


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