1. The police charged four persons with the theft of a calf or, in the alternative, of an offence punishable under Section 411 or Section 414, Penal Code. All the four accused were convicted by the Stationary Sub-Magistrate of Udumalpet. He sentenced accused 3 to a substantial term of imprisonment; but he thought that as the other three accused had not before committed any offence, they might well be released under Section 562, Criminal P.C. As the Magistrate had no powers to pass orders under Section 562, Criminal P.C., he referred the matter under the proviso to that section to the Sub-Divisional Magistrate to pass the necessary orders. The Sub-Divisional Magistrate instead of doing this acquitted accused 1, 2 and 4. The Sessions Judge has referred the matter to this Court, expressing his opinion that the Sub-Divisional Magistrate acted illegally and without jurisdiction. There can be no doubt that the Sessions Judge was correct. Section 562, Criminal P.C., applies only to convicted persons, as can be seen from the very wording of that section. It begins with the words 'when any person not under 21 years of age is convicted of an offence ...' Further, the proviso begins 'provided that where any first offender is convicted by a Magistrate of the third class ...' 'When a reference is made under Section 562, Criminal P.C., the Magistrate to whom it is referred has to proceed as in the manner provided by Section 380. Section 380, Criminal P.C., relates only to the passing of a sentence or making of an order and does not empower the Sub-Divisional Magistrate to set aside a conviction. The section does say that: 'if the Magistrate 'thinks' further enquiry or additional evidence on any point to be necessary, he may make such enquiry or take such evidence himself ...'; but that has been interpreted in Public Prosecutor v. Gurappa Naidu A.I.R. 1933 Mad. 728 as giving the Sub-Divisional Magistrate power to make further enquiries so that he may decide whether or no it is a fitting case for the passing of an order under Section 562, Criminal P.C., or whether, on the other hand, he ought to impose some substantial sentence under the Penal Code.
2. Ordinarily, an order passed without jurisdiction should be set aside and the Magistrate ordered to continue the proceedings from the point where the illegal order was passed; but upon hearing the Public Prosecutor, I think, that perhaps this might unduly harass the three accused, against whom evidence is very little. I agree with the Sub-Divisional Magistrate that they should have been given the benefit of the doubt. I do not therefore think it necessary to accept the reference. It is rejected.