1. There is something more than a mere technicality in the objection raised by Mr. Richmond in the petition. Originally the case was tried by the 2nd Glass Magistrate of Madura but he, having been of opinion that the deceased should be required to execute bonds under Section 106, Criminal Procedure Code, sent the case to the Sub-Divisional Magistrate of Melar under Section 349, Criminal Procedure Code. The reason given by the 2nd Class Magistrate for submitting the proceedings to the Sub-Divisional Magistrate are; ' The accused have created serious disturbance by taking the law into their own hands and their object in forcibly entering into the temple is to establish their rights. I find the accused Nos. 2, 5, 6, 7 and 8 guilty of the offences under Sections 147 and 323, Indian Penal Code. I think that the accused are likely to commit further breaches of the peace and I am of opinion that they ought to be required to execute a bond for a heavy sum under Section 106, Criminal Procedure Code. I, therefore, submit proceedings with records to the Divisional Magistrate, Melur, under Section 349, Criminal Procedure Code.' The Sub-Divisional Magistrate on receipt of the records simply passed sentence on the accused without writing any judgment. Thereupon there was an appeal to the Sessions Judge. Mr. Coleridge, who was then the Sessions Judge, passed this order; I think the accused are entitled to a full judgment by the lower Court and I remand the case back to the District t Magistrate to direct the Sub-Divisional Magistrate to write a full judgment dealing with the facts and the law. 'Apparently what the Sessions Judge did was to retain the appeal on his file and to ask for a fresh judgment from the Divisional Magistrate. That is dear from the entries in the diary of the Sessions Judge. When the papers went back to the Divisional Magistrate, he wrote a long judgment. Thereupon a day was fixed by Mr. Booty, Mr. Coleridge's successor, for hearing the appeal. Mr. Booty was of opinion that the procedure adopted by Mr. Coleridge was not right. He said that the absence of the conjunctive principle in Section 349, Criminal Procedure Code, which speaks of judgment, sentence or order' is an indication that all that the Divisional Magistrate need have done was to pass a sentence and to make up his mind whether the accused were guilty or not. In that the learned Sessions Judge is clearly wrong. The only limitation upon the powers of the Sub-Divisional Magistrate under Section 349 is that he should not inflict a more severe punishment than he is empowered to impose under Sections 32 and 33, Criminal Procedure Code. On the papers being received from the 2nd Class Magistrate the Sub-Divisional Magistrate could have come to the conclusion that the accused were not guilty, he could have come to the conclusion that the accused should have been convicted of some other offence, he could have made up his mind that it was not a fit case for requiring the accused to execute a bond, all these things were open to him and he was bound to have exercised his independent judgment in the matter. It is not necessary that he should have written a lengthy judgment, especially as he had the judgment of the Subordinate Magistrate before him, but he ought to have written a judgment which should have conformed to the requirements of Section 367, Criminal Procedure Code. In our opinion Mr. Booty was wrong in that the Divisional Magistrate was not bound to do anything more than to record sentence when the records were received from the 2nd Class Magistrate. After stating this Mr. Booty proceeded to examine the facts of the case, and he has come to the conclusion that the view taken by the Divisional Magistrate was right.
2. In this Court it is contended that the proper procedure which Mr. Coleridge should have adopted was to reverse the appeal and remand the case for hearing de (sic) to the Divisional Magistrate. We think that the learned Counsel is right in this contention. There is no power under Section 423, Criminal Procedure Code, to retain the case on the file when asking for a judgment which the Magistrate has failed to record. The correct procedure to have adopted was to have disposed of the appeal and to have remanded the case to the Divisional Magistrate for hearing de novo. This not having been done, we must hold that there was no appeal legally on the file of the Sessions Judge which Mr. Booty could have disposed of. Under these circumstances we think we must set aside the order of the Sessions Judge and send the whole case back to the District Magistrate, with directions to send it to some other First Class Magistrate than the Sub-Divisional Magistrate (Mr. Meenakshisundaram) who tried the case.
3. It is desirable to point out, having regard to what took place before Mr. Meenakshisundaram, that, on remand, the accused are entitled to be heard and to satisfy the Magistrate, if they can, that there is no case against them.