1. The petitioners seek to revise the judgment and sentence of the Sub-Divisional Magistrate of Shermadevi in Criminal Appeal No. 23 of 1925 confirming the sentence of the Sub-Magistrate of Ambasamudram in C.C. No. 337 of 1925 on the ground that the Court of trial had no jurisdiction.
2. It was found that the 2nd appellant seized one Suppan Asari (P. W. 1) and tied him to a pillar. The 1st appellant would only release him if he paid Rs. 100. On payment of Rs. 75 Suppan Asari was released. This is a clear case of robbery and the petitioners moved both the Sub-Divisional and District Magistrates to transfer it from the file of the Sub-Magistrate who had no jurisdiction.
3. The Public Prosecutor has not defended the District Magistrate's interpretation of Section 390, Indian Penal Code. Suppan Asari was in fear of instant wrongful restraint at the moment when he delivered the property in the presence of the accused. There may have been previous wrongful restraint with no extortion, but it is not necessary that the extortionshould follow immediately upon the restraint in order to constitute robbery, provided that there is fear of restraint at the time. In illustration (d) to Section 390, Indian Penal Code, the father is in instant fear of his child's death, though the child may have been in the hands of the gang for some time. Nor in the present case can it be said as the District Magistrate says, that the threat was not of immediate violence even, but of a, concocted case. In the words of the complaint, the accused said, 'We shall release him only on paying the amount.'
4. The Sub-Magistrate has found the petitioners guilty of wrongful confinement under Section 342 and of extortion at the same time and place under Section 384, a finding which embraces all the ingredients of robbery as defined by Section 390; and the Sub-Magistrate not being a Magistrate of the 1st Class his jurisdiction is clearly barred under Clause 8, Schedule II of the Code of Criminal Procedure.
5. The law on this matter is plainly enunciated in King-Emperor v. Ayyan  24 Mad. 675. If a Magistrate entirely overlooks some fact which would carry the case beyond his jurisdiction and tries the accused for a lesser offence, he is not held to have acted without jurisdiction. The question whether he has or has not entirely overlooked the circumstances would be one of fact. If, on the other hand he does not overlook the circumstance, but after his attention has been drawn to it he deliberately ignores it his proceedings would be improper though not void.
6. There can be no doubt in the present case that the proceedings were improper, because after the Magistrate was fully cognizant of the aggravating circumstance of restraint and has indeed founded a conviction upon it under Section 342, Indian Penal Code, he nevertheless refused to admit that it was a case of robbery. If this were a mere slip in a matter of law this Court might perhaps not move further. But the petitioners called the attention of the Magistrate to his mistake and it has long been recognized that this carries the case beyond the region of mere excusable error. Cf. Weir, Ed. 3, Vol. 2, page 21:
No tribunal can properly clutch jurisdiction by intentionally ignoring facts of aggravation which make the offence really cognizable only by a higher tribunal...and where the accused has himself objected to the jurisdiction it is possible that the High Court would feel itself bound to interfere.
7. If the accused says, I am charged with robbery which a Sub-Magistrate cannot try, and the Sub-Magistrate replies :
I agree both as to the wrongful restraint and as to the extortion but I shall ignore the effect of aggravation and charge not for robbery but severally for restraint and extortion.
then he is clearly clutching at jurisdiction ; and if a Magistrate not empowered under Section 28, and Schedule 2 of the Code of Criminal Procedure, tries an offence, it is difficult to see how he acts otherwise than in a private capacity. If he exceeds his power in good faith Section 529 allows him a certain latitude ; but that section does not allow him to try an offence which he is not empowered to try. On the contrary Section 530 definitely avoids such proceedings. Candy, J., has tried to get over the difficulty in Queen-Empress v. Gundya  18 Bom. 502 by suggesting that the charge circumscribes the trial; so that if a 2nd Class Magistrate charges under Section 325 he is not acting without jurisdiction although the evidence discloses an offence under Section 326. But with all respect I think it must be held quite apart from the charge that whenever facts are proved constituting the aggravated offence, that is the offence which is being tried, it is not as though the analogy of a civil trial were applicable and the Magistrate is restricted to the facts set forth in the plaint and issues. In a criminal trial he must be ever ready as the facts are disclosed either to alter the charge under Section 227 or to refer the case under Section 347. If a 2nd Class Magistrate has originally charged under Section 325, and evidence is led to show that the hurt was caused by an axe, he must refer the case under Section 346 and not try facts constituting an offence under Section 326. If for some reason he entirely overlooks the axe, he may be said perhaps never to have tried that fact, but this oversight is a circumstance which must be proved and cannot be presumed; for presumably a Judge doss not overlook the facts which he records.
8. It may be said that the accused has no real grievance if he has been tried for lesser offences; but such an argument runs counter to the whole intention of the Code. Offences are elaborately scheduled within the powers of various Magistrates precisely for the reason that the graver offences should be tried by the better qualified Magistrates. Besides if this case is disposed of in this fashion, there is no reason in law why petitioners should not now be tried in addition for robbery, an offence of which a Court of competent jurisdiction has not acquitted them.
9. For the above reasons I set aside the judgment and sentence of the appellate Court and order petitioners to be re-tried by the District Magistrate or any Magistrate under him, of competent jurisdiction who has not been previously seised of this case.