1. This is a reference by the learned Sessions Judge of South Malabar under the following circumstances. The four accused were tried by the Second Class Magistrate, Fort Cochin, for an Offence under Section 323, I. P. C. The Magistrate found all of them guilty of the offence under Section 323, I. P. C. and sentenced accused 1 to a fine of Rs. 50, in default to two months rigorous imprisonment. In respect of the other accused, i.e., accused 2 to 4 he was of opinion that they should be dealt with under Section 562 (1-A) Criminal P. C. and as he was not empowered to pass orders under the above section, he sent up the records to the sub-Divisional Magistrate, Port Cochin for action. The Sub-Divisional Magistrate, Fort Cochin, let off the accused with an admonition under Clause (1-A) of Section 562, Criminal P. C. Accused 2 to 4, who were thus let off with an admonition, then preferred an appeal in C. A. No. 10 of 1952 to the Sessions Court, South Malabar. At the time of the hearing of the appeal, the Local Public Prosecutor raised an objection that the Second Class Magistrate was not competent to send to the Sub-Divisional Magistrate the case relating to accused 2 to 4 alone and that the entire records including the case of accused 1 should have been sent to the Sub-Divisional Magistrate. This objection was apparently based on a decision of this court in -- 'Emperor v. Narayanaswami Naidu', 1936 Mad WN 235 (A). The learned Sessions Judge agreeing with the contention of the Public Prosecutor has made a reference to this court under Section 438, Clause (1) Criminal P. C. and has asked for appropriate orders to be passed. In his letter of reference, he refers to two other decisions of this court, which are reported in -- 'Piramanayagapandaram v. Emperor', AIR 1943 Mad 390(B), and -- 'In re Munisami', AIR 1948 Mad 86(C), and points out the conflict in authority.
2. The question now is whether in the circumstances of this case all the accused should have been sent up or only the case of those, who in the opinion of the Second Class Magistrate are to be treated under Section 562, Clause 1-A, Criminal P. C. should be sent up. The argument that all the accused must be sent up is based on the provisions of Clauses (1) and (1-A) of Section 349, Criminal P. C., which are as follows : (His Lordship after quoting the provisions of the clauses proceeded to state:) This section has been interpreted by Pandrang Row J. in --'1936 Mad WN . 235(A), to apply to cases like the present one, that is to say, that in such cases all the accused should be sent up. In that case, two accused were tried, the first for an offence under Sections 498 and 379 I. P. C. and the second for an offence under Section 379 I. P. C. Both were found guilty, but the first accused was sentenced to three months rigorous imprisonment and the case of the second accused was sent up to the Sub-Divisional Magistrate for being dealt with under Section 562, Clause (1). Pandrang Row J. held that the procedure followed is opposed to the express provisions of the law contained in Section 349(1-A) Criminal P. C. The convictions of both the accused were set aside and the Magistrate was asked to forward both the accused to the Sub Divisional Magistrate, if he still thought that the second accused, should be dealt with under Section 562, Criminal P. C. A contrary view is expressed by Byers J. in --AIR 1943 Mad 390(B). In the above case, forty one persons were convicted by the Second Class Magistrate, and of them twenty eight were sentenced to three months rigorous imprisonment and the rest were sent up to the Sub-Divisional Magistrate for being dealt with under Section 562(1), Criminal P. C. The Sub Divisional Magistrate took the view relying on the decision in --1936 M WN 235(A); that all the accused should have been sent up. HE therefore asked the District Magistrate to make a reference to the High Court. In the reference made by the District Magistrate, who did not agree with the view taken by the Sub-Divisional Magistrate, Byers J. held that Section 349 (1-A) Criminal P. C. has no application to the procedure under Section 562, Criminal P. C. and the order of the Second Class Magistrate was upheld.
3. The other decision referred to by the learned Sessions Judge --'AIR 1948 Mad 86(C)', is a decision by Yahya Ali J. This does not touch the point in question as it is a case in which the Second Class Magistrate tried two persons for the offence of theft and receipt of stolen property and convicted both of them; and though he was of the view that one of them should be dealt with under Section 562, Criminal P. C. he sent up the case of both the accused to the Sub Divisional Magistrate. Yahya All J. therein held that Section 562, Criminal P. C. read with Section 380, Criminal P. C. does not prohibit sending up both the accused to the Sub Divisional Magistrate.
4. On a consideration of all the authoritiesand the relevant sections in Criminal P. C.I am of opinion that the view taken by ByersJ. is the correct one. Section 349(1-A) CriminalP. C. will apply only to cases which fall underClause (1) of Section 349 Criminal P. C. Clause 1 ofSection 349 Crl. P. C. will apply only to cases wherethe Magistrate is of opinion that the accused isguilty and that he ought to receive a 'punishment different in kind' (underlining is mine) ormore severe than that which the Magistrate isempowered to inflict. The two circumstances,therefore, under which he may send up the recordsare (1) the punishment to be inflicted must bedifferent in kind from that which he is empowered to inflict, (2) the punishment must be moresevere than that which he can inflict. In noother circumstances can he send up the recordsunder Section 349, Criminal P. C.
5. This leads us to a consideration of the question as to what exactly the punishments are, which can be inflicted by the Second and Third Class Magistrates and what are the other punishments, which, in the opinion of the Magistrate, the accused must receive, but which he cannot inflict. The punishments to which the offenders are liable under the provisions of the Indian Penal Code are contained in Section 53 I. P. C. which are (1) death, (2) transportation, (3) imprisonment, (rigorous or simple), (4) forfeiture of property, and (5) fine. To this must be added whipping which has been introduced by the Whipping Act (Act IV of 1909) and sending young persons, youthful offenders and children, all under the Madras Children Act to the various schools mentioned therein. Of the above punishments, those which the various magistrates can inflict are contained in Section 32, Criminal P. C. Under the above section a sentence of whipping can be passed only by the Presidency Magistrates and First Class Magistrates. Similarly, under the Madras Children Act, among Magistrates, only the Magistrates mentioned in Section 4 of the Act can exercise the powers conferred by the Act. A Magistrate with the Second or Third Class powers cannot inflict whipping, nor can a First Glass or Second Glass Magistrate unless specially empowered exercise the powers under the Madras Children Act. Whipping is a punishment different in kind from imprisonment or fine, so is sending young persons, youthful offenders or children to the various schools mentioned in the Madras Children Act. If the Second or Third Class Magistrate not competent to inflict the above punishments is of opinion that any accused should receive the sentence of whipping in accordance with the provisions of the Whipping Act or should be sent to one of the schools mentioned in the Madras Children Act, then Clause (1) of Section 349 will apply and when there are more accused than one, Clause (1-A) of the section will apply. It is only to such cases that Section 349, Criminal P. C., applies, in addition, of course, to cases where more severe punishment is to be inflicted.
6. Dealing with the accused under the provisions of Section 562, Clause (1) or Clause (1-A) is not a punishment, Section 562, Criminal P. C. itself says chat the court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period (not exceeding three years) as the court may direct and in the meantime to keep the peace and be of good behaviour. Similarly in Clause (1-A) of Section 562, Criminal P. C., the court may, instead of sentencing him to any punishment, release him after due admonition. It is clear, therefore, that, no sentence is passed when the accused is dealt with under the provisions of Clause (1) or Clause (1-A) of Section 562, Criminal P. C. The order to be passed under Section 562, Criminal P. C., is therefore not a punishment and the question of punishment different in kind does not arise in such a case. I may refer to a decision of the Nagpur High Court in -- 'Baba v. Emperor', AIR 1924 Nag. 37 (D), which takes the same view that an order under Section 562, Criminal P. C., cannot be said to be a punishment. The decisions in -- 'Emperor v. Ghasite', AIR 1914 All 543 (E) and -- 'Emperor v. Hiralal', : AIR1924All765 (F), also lend support to this view.
7. Apart from this, as pointed out by Byers J. Section 562, Criminal P. C., itself prescribes the procedure to be followed by the Second and Third Class Magistrates, in whose opinion the provisions of Section 562 Criminal P. C., have to be applied to any accused. In such cases Section 380 Criminal P. C., applies.
8. The fundamental difference between Sections 349 and 380 Criminal P. C., is that in the former case, the Magistrate does not convict the accused, but is of opinion only that he is guilty and the records are sent only with that opinion, whereas in the latter case, the superior Magistrate receives the records after the Second or Third Class Magistrate convicts the accused of the offence with which he is charged, so that the superior Magistrate cannot acquit him after receiving the records under Section 380 Crl. P. C. Vide the decision in -- 'Venkataswami Naicken v. Emperor : AIR1942Mad657 . In a reference under Section 349, Criminal P. C., a superior Magistrate can pass any judgment, sentence or order as he thinks fit and according to law. The cases of those who have to be dealt with under Section 562, Criminal P. C., fall under Section 330, Criminal P. C., and not Section 349, Criminal P. C.
9. The result is that the procedure followed by the Second Class Magistrate is correct. There is nothing irregular or illegal in the order passed by the Sub-Divisional Magistrate regarding accused 2 to 4. The objection raised by the Public Prosecutor, South Malabar fails, and the appeal by the accused in the C. A. No. 10 of 1952 will be taken on file by the learned Sessions Judge and disposed of according to law treating the procedure followed by the Second Class Magistrate, Fort Cochin, as a proper one.
10. I am indebted to Mr. G. Gopalaswami for the assistance he rendered me in the case.