1. This is a revision against an order passed by the Sub-Divisional Magistrate, Tiru-pattur in Dis. No. 1536 of 1958.
2. A complaint was laid before the Sub-Magistrate, Ambur, alleging that the accused has misappropriated certain collections made by him in a theatre. The complaints, no doubt, incidentally referred to certain false entries in the cash book, -which he had maintained. But. the complainant asked the court to take action for an offence under Section 408, IPC The summons was, therefore, issued to the accused for this offence.
After the accused appeared and when the trial started and in the course of the chief examination of the first witness for the prosecution, the witness deposed about the falsification of the entries as well. On this evidence the Sub-Magistrate thought it fit very rightly to make a reference to the Sub' Divisional Magistrate under Section 346 (1), Criminal P. C, as the Sub-Magistrate had no jurisdiction to try the accused for an offence under Section 477. IPC
3. The Sub-Divisional Magistrate has in an extraordinary order passed by him held that the Sub-Magistrate should have taken cognisance of it even in the first instance and referred back the matter to him saying that the stage at which he referred was not the proper one. He further seems to hold the opinion that taking the case on file for an offence under Section 408, IPC is with a view to dispose it of himself even though the facts mentioned in the complaint disclosed an offence under Section 477-A, I.P.C. and returned the records to the Sub-Magistrate to dispose it of according to law.
4. It is quite obvious from the order of the Sub-Divisional Magistrate that he has not even read the provisions of Section 346, Criminal P.C. Section 348 (1) of the Criminal Procedure Code is as follows:
If in the course of an inquiry or a trial before a Magistrate in a district outside the presidency towns, the evidence appears to him to warrant a presumption that the case is one which should be tried or committed for trial by some other magistrate in such district, he shall stay proceedings and submit the case, with a brief report explaining its nature, to any magistrate to whom he is subordinate or to such other magistrate, having jurisdiction, as the District Magistrate directs.
It is clear from the provisions of the section that if in the course of an inquiry or trial, the evidence given appears to the Magistrate to warrant a presumption that the case is one which should be tried or committed for trial by some other Magistrate, he shall stay proceedings and submit the case etc. The reference under Section 346 is therefore not at all limited to the stage at which he takes cognizance of the filing of the complaint.
It is no doubt open to the Magistrate on the allegation made in the complaint to take notice of the serious offence alleged therein, in which case he will have to return the complaint to be presented before the proper court. But under Section 346 in cases where in the course of an inquiry or trial the evidence appears to warrant a presumption,; that the case is one which should be tried or committed for trial he can act under the section.
It is after the trial has started in this case and after P.W. 1 was examined, that is when P.W. 1 gave evidence in this case, the Sub-Magistrate ber came aware of the offence under Section 477-A, IPC When he became aware of that offence, his duty demanded that he should make a reference to the Sub-Divisional Magistrate, who had jurisdiction to try. He had no other alternative but to act according to the directions contained in Section 346 (1).
But the Sub-Divisional Magistrate would not read the provisions of Section 346, for reasons best known to himself and without even caring to find out at what stages a Sub-Magistrate can make a reference, in a very slipshod manner has passed this order in question. To say the least, the order is very unsatisfactory and is untenable on the face of it. The order is hereby set aside, and the reference will be taken on file by some other Sub-Divisional Magistrate or First Class Magistrate, other than the Sub-Divisional Magistrate, who disposed of this reference.
The District Magistrate will effect the necessary transfer, to the First Class Magistrate or the Sub-Divisional Magistrate in the district.