1. The accused was an old offender. He was charged by the Police before the Joint Magistrate of Rajahmundry with attempting, to steal a purse from a person's pocket. The Joint Magistrate thought that as Section 75, Indian Penal Code, would have to be applied, the accused ought to be punished with a larger sentence than he himself could impose; and so he transferred the case to the file of the Stationary Sub-Magistrate of Rajahmundry to be tried as a P. E. case and the accused committed to Sessions if the Stationary Sub-Magistrate thought that a prima facie case had been made out against him. The Stationary Sub-Magistrate after enquiry thought that a prima facie case had been made out and committed the accused to Sessions. The Sessions Judge on reading the committal order was of the opinion that the committal was illegal, in that Section 75, Indian Penal Code, does not apply to an offence punishable under Section 511, Indian Penal Code, read with Section 379, Indian Penal Code. He therefore referred the case to this Court to have the committal quashed.
2. Section 75, Indian Penal Code can be applied to offences punishable under Chapters XII and XVII of the Indian Penal Code, but the Joint Magistrate overlooked the fact that Section 511, Indian Penal Code is neither in Chapter XII nor in Chapter XVII, but in Chapter XXIII. The learned Sessions Judge was therefore quite right in thinking that the Joint Magistrate had formed a wrong conclusion that Section 75, Indian Penal Code, could be applied and that he himself could not impose a sufficient sentence. Under Section 511, Indian Penal Code, the maximum sentence is one half of' the maximum sentence for the offence which the accused attempts to commit. The maximum sentence for theft is three years' rigorous imprisonment; so the maximum sentence for an attempt to commit theft is eighteen months' rigorous imprisonment, which was within the powers of the Joint Magistrate.
3. The learned Sessions Judge was however wrong in thinking that on that account the committal was illegal. Under Section 28 of the Code of Criminal Procedure a Sessions Court can try any case. Chapter XVIII of the Code of Criminal Procedure lays down the procedure to be adopted in preliminary enquiry cases; and under Section 209, the Magistrate, if he finds that the prosecution has made out its case, should commit the accused to Sessions unless it appears to him that 'such person should be tried before himself or some other Magistrate'. Clearly the Stationary Sub-Magistrate did not think that some other Magistrate should try it, and so his order committing the accused to Sessions was a legal order. Even when a warrant procedure is adopted, the Magistrate may under Section 347, commit the accused to Sessions if he thinks that it is a case which ought to be tried by the Court of Session. It may be true that the Joint Magistrate had no power to order the Sub-Magistrate to try the case; but that does not make the committal illegal.
4. There was therefore no need at all for the Sessions Judge to refer this case to the High Court. In order that such mistakes might be avoided in future, he could have drawn the attention of the Magistrate through the District Magistrate to the fact that it was unnecessary to have committed the accused to Sessions. However, as the matter is now before this Court and the trial has not begun, and as it seems desirable that the time of a higher tribunal should not be taken when a lower tribunal can try the case, the committal is quashed and the Joint Magistrate of Rajahinundry is ordered to take this case on his file and dispose of it according to law.