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In Re: Palli Munisami and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported in(1947)1MLJ17
AppellantIn Re: Palli Munisami and anr.
Cases ReferredEmperor v. Mottiyan
Excerpt:
- .....this is a reference made by the additional district magistrate, chittoor, under section 438 of the code of criminal procedure in the following circumstances. two persons were tried by the stationary sub-magistrate, tirupathi, in c.c. no. 813 of 1946 for offences of theft and receiving stolen property. the first accused, p. munisami, aged 18 years, was convicted by the sub-magistrate under section 380 of the code of criminal procedure in respect of the theft of a gramophone and a wireless set from the military stores, renigunta. the second accused krishniah was convicted under section 411 of the indian penal code for having dishonestly received those two articles knowing them to be stolen. the stationary sub-magistrate after convicting the two accused considered that the first accused.....
Judgment:
ORDER

Yahya Ali, J.

1. This is a reference made by the Additional District Magistrate, Chittoor, under Section 438 of the Code of Criminal Procedure in the following circumstances. Two persons were tried by the Stationary Sub-Magistrate, Tirupathi, in C.C. No. 813 of 1946 for offences of theft and receiving stolen property. The first accused, P. Munisami, aged 18 years, was convicted by the Sub-Magistrate under Section 380 of the Code of Criminal Procedure in respect of the theft of a gramophone and a wireless set from the Military Stores, Renigunta. The second accused Krishniah was convicted under Section 411 of the Indian Penal Code for having dishonestly received those two articles knowing them to be stolen. The Stationary Sub-Magistrate after convicting the two accused considered that the first accused being a first offender and an adolescent should be dealt with under Section 562 of the Code of Criminal Procedure and in that view he forwarded the proceedings to the Sub-Divisional Magistrate, Chandragiri, for appropriate orders and in doing so he sent up both the accused to the Sub-Divisional Magistrate for being dealt with in accordance with law. The Additional District Magistrate considers that the legality of such a proceeding is not free from doubt in view of certain decisions of this Court and has solicited a definite ruling to meet cases of this kind.

2. The proviso to Section 562 of the Code of Criminal Procedure enacts that where any first offender is convicted by the Magistrate of the third class or a Magistrate of the second class not specially empowered by the Provincial Government in this behalf and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect and submit the proceedings to a Magistrate of the first class or Sub-Divisional Magistrate, forwarding the accused to, or taking bail for his appearance before such Magistrate, who shall dispose of the case in a manner provided by Section 380. Section 380 of the Code of Criminal Procedure is to the following effect:

Where proceedings are submitted to a Magistrate of the first class or a Sub-Divisional Magistrate as provided by Section 562, such Magistrate may thereupon pass such sentence or make such order as he might have passed or made if the case had originally been heard by him, and, if he thinks further inquiry or additional evidence on any point to be necessary, he may make such inquiry or take such evidence himself or direct such inquiry or evidence to be made or taken.

These two sections practically constitute in themselves a complete and self-sufficient machinery to meet cases of this description and it is hardly necessary to invoke the aid of Section 349 of the Code of Criminal Procedure to determine whether in such cases all the accused should be sent up or only the person against whom action under Section 562 of the Code of Criminal Procedure is contemplated. Section 349(1) lays down the procedure when a Magistrate cannot pass a sentence that he considers to be appropriate to meet the ends of justice in a case. He may in such a case forward the accused to the District Magistrate or Sub-Divisional Magistrate to whom he is subordinate. Sub-section (1-A) of that section reads:

When more accused than one are being tried together and the Magistrate considers it necessary to proceed under 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 Sub-Divisional Magistrate.

Thus it will be seen that in this sub-section statutory provision has been expressly made requiring that in a case where the Magistrate has decided to take action under Section 349 he must forward all the accused who are in his opinion guilty. In such a case he does not convict the accused but only records his opinion that the accused is guilty and submits the proceedings to the superior Magistrate.. In such a case again the superior Magistrate has the right, either on a perusal of the record or on making further inquiry under Sub-section (2) of the same section, to pass any order including an order of acquittal of all the accused. Obviously these characteristic features of Section 349 do not fit into a case arising under Section 562. In such a case the Magistrate before sending up the proceedings convicts the accused including the person against whom action under Section 562 is sought. The superior Magistrate to whom the record goes has the power under Section 380 to pass such sentence or make such order as he might have passed or made if the case had originally been heard by him, and if he thinks further inquiry or additional evidence on any point to be necessary, he may make such inquiry or take such evidence himself or direct such inquiry or evidence to be made or taken. It has however been held by this Court that in such a case he cannot pass an order of acquittal against any of the persons sent up since the Magistrate who tried the accused and who has forwarded the case has already convicted the accused and the proceedings before the superior Magistrate are not in the nature of appellate proceedings--see The Public Prosecutor v. Malaipathi Gurappa Naidu : AIR1933Mad728 . It was apparently in this view that Byers, J., held in Piramanaga Pandaram v. Emperor (1943) M.W.N. (Cri.) 9 that Section 349(1-A) has no application to the procedure under Section 562 of the Code of Criminal Procedure. That decision however cannot be deemed to have overruled the contention on an interpretation of Sections 562 and 380 of the Code of Criminal Procedure that there is nothing in those provisions which precludes the convicting Magistrate from sending up the entire case or all the accused to the superior Magistrate. To put it in another way there is nothing in these sections which compels the Court to hold that the trying Magistrate is bound to send up only that person against whom action is required under Section 562 and he must himself pass sentence upon the other persons who are not to be so dealt with. The consequences of Courts of different grades' dealing with different accused in the same case are apparent. The case against one or some of the accused would have been dealt with by the second or third class Magistrate as the case may be and the accused would have been convicted. The case against the person dealt with under Section 562 would have been dealt with by the Sub-Divisional Magistrate who would have passed sentence on that person. The appeal against the conviction awarded by the Sub-Magistrate would lie to the same Sub-Divisional Magistrate who had dealt with a part of the case while the appeal against the order of the Sub-Divisional Magistrate would lie to a higher Court and it is not unlikely that conflicting decisions might be the result with regard to the different accused persons in the same case. Unless therefore the language of Section 562 compels an interpretation which must unavoidably lead to such anomalous results such a construction should be avoided. But it is not necessary to invoke this principle of construction because on a scrutiny of the language of the proviso to Section 562 and the language of Section 380 it is possible to find that such a result was not intended, viz., to prohibit the trying Magistrate from sending up, if he so chooses, all the accused whom he has tried including the persons against whom he recommends action under Section 562. The proviso says that when a first offender is convicted by such a Magistrate and he is of opinion that the case should be dealt with under this section, he should submit 'the proceedings' to the superior Magistrate forwarding 'the accused' to that Magistrate who shall dispose of 'the case ' in manner provided by Section 380. The words ' the proceedings,' ' the accused ' and ' the case' occurring in Section 562 seem to indicate that the forwarding of the entire proceedings, all the accused and the whole case is not either expressly or by implication excluded. Likewise in Section 380 it is stated that the superior Magistrate when the records come to him may pass such sentence or order as he might have passed in ' the case ' originally heard by him. Here also the indication is that the possibility of the entire case going before the Magistrate was not ruled out. There is therefore nothing in the language of these two sections which prohibits a Magistrate of the second or third class sending up all the accused, the whole case and the entire proceedings to the Sub-Divisional Magistrate in a case where he suggests that action should be taken under Section 562 against only one or few of the accused persons.

3. I may refer to three other cases bearing upon this issue which were decided in this Court. In Emperor v. Narayanaswami Naidu (1936) M.W.N. (Cri.) 235. Pandrang Row, J., was of opinion that Section 349 applied to such a case. That view as I have already indicated is opposed to the decision of Byers, J., in the case cited above; Pandrang Row, J., however did not take into consideration the provisions of Section 380 and did not have in that case to enter into a detailed examination of the language of Sections 562 and 380 with a view to decide whether the principle of Section 349(1-A) rather than the provision itself is not implicit in the language of these two sections. The next case in Emperor v. Mottiyan (1941) M.W.N. (Cri.) 96 was decided by Lakshmana Rao, J. The first accused in that case was a juvenile and the trying Magistrate was not empowered to deal with him under the Madras Children Act and hence the records were sent up to a higher Magistrate. It was held that both the accused should be sent up and not the juvenile alone. This view found approval in the judgment of a Bench of this Court in Subbiah Goundan, In re (1945) M.W.N. (Cri.) 34. That was also a case which arose under the Madras Children Act and the learned Judges held that the case fell within Sub-section (1) of Section 349 and that Sub-section (1-A) should have been conformed to.

4. These two cases are not cases arising under Section 562. So far as Section 562 is concerned both that section and Section 380 form part of the same Code and they provide the necessary machinery and in that view Section 349(1-A) may not in terms be directly applicable to such a case as has been held by Byers, J. But independently of Section 349(1-A), the language of Sections 562 and 380, in my opinion, yields to the construction that what was intended was that if the Magistrate so chooses the entire proceedings, the whole case and all the accused may be forwarded. In any case it is not provided in these sections nor is it suggested by Byers, J., in his decision that such a course is repugnant in any manner to the language of Sections 562 and 380.

5. In this view of the matter the action taken by the Sub-Magistrate in forwarding both the accused and the entire case records to the Sub-Divisional Magistrate is in accordance with law and the Sub-Divisional Magistrate should dispose of the case as provided in Section 380 of the Code of Criminal Procedure. The reference is answered accordingly.


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