1. The Sub-Magistrate, Puttur, in Criminal Case No. 432 of 1944, convicted two youths of offences under Section 380 of the Indian Penal Code. The prosecution case was that the first accused, who was travelling in the same carriage, as P.W. 1, picked P.W. 1's pocket of a purse as soon as the train stopped at Puttur railway station and passed the purse over to the second accused. P.W. 1 did not actually see the first accused taking the purse from his pocket, but he says he saw him pass the purse to the second accused, and P.W. 2, a refreshment attendant, says that he saw the first accused pick P.W. 1's pocket and pass the purse to the second accused. As the accused had not been previously convicted, the Sub-Magistrate thought that the case was a fit one to be dealt with under the provisions of Section 562 of the Code of Criminal Procedure and accordingly forwarded the two accused to the Joint Magistrate of Chandragiri. The Joint Magistrate was of opinion that the accused should not have been convicted and he requested the District Magistrate of Chittoor to address this Court to quash the conviction. The District Magistrate in the reference now under consideration has recommended that the conviction should be set aside.
2. The learned Joint Magistrate appears to have been in some doubt as to whether he himself was not empowered after further enquiry to set aside the conviction, and in his letter to the District Magistrate he asks what is the nature of the enquiry contemplated within the meaning of Section 380 if no enquiry could be conducted under Section 380 of the Code of Criminal Procedure which may upset the conviction. When an accused person comes before a Magistrate under Section 380, he can be treated only as a convicted person and the Magistrate is not empowered to set aside the conviction already recorded by the Magistrate who refers the case--vide Public Prosecutor v. Gurappa Naidu I.L.R.(1882)Mad. 169 . The kind of enquiry or the nature of the additional evidence contemplated by Section 380 is clearly such enquiry or evidence as may assist the Magistrate to whom the accused have been forwarded to exercise his discretion properly under Section 562 of the Code of Criminal Procedure. In the present case, for instance, the Sub-Magistrate says that the accused are ' young boys still in their teens.' As boys are in their teens from the age of 13 to 19, the Joint Magistrate might want to ascertain what the age of the youths really is.
3. So much for the question asked by the Joint Magistrate. As regards the reference it does not seem to me that it was necessary for it to have been made. The District Magistrate, it may be noted, says nothing at all on the merits. In my opinion, the appreciation of the evidence made by the Sub-Magistrate is to be preferred to the opinion of the Joint Magistrate. The Joint Magistrate seems to have accepted the explanation of the accused, which was not supported by any evidence, that the first accused picked the purse up. Moreover, it is not correct to say, as he does, that the only evidence against the first accused is that of P.W. 2. P.W. 1 says that he saw the first accused hand the purse to the second accused. No doubt he does not say that he actually saw the first accused pick his pocket. But why, if the first accused had innocently picked the purse up from the platform, should he have immediately handed it to the second accused? P.W. 1 's evidence, therefore, does corroborate the evidence of P.W. 2 and it seems to me that there are no adequate grounds for differing from the conclusion reached by the Sub-Magistrate that the prosecution had proved its case that the accusd were guilty of the offence charged under Section 380. The reference, therefore, is not accepted and the records will be returned to the Joint Magistrate through the District Magistrate, Chittoor, to be dealt with in accordance with the provisions of Section 562 of the Code of Criminal Procedure.