STATE Vs. NARM PILLAL JANARDHANAN PILLAI

JUDGEMENT

(1.) The case was referred to this Court by the District Magistrate, Quilon for appropriate orders. The letter referring the case gives the necessary facts required for the disposal of the reference and it is reproduced below:

(2.) S.349 of the Criminal Procedure Code allows a Magistrate of the Second or Third Class to submit his proceedings and forward the accused to the District Magistrate or Sub Divisional Magistrate, to whom he is subordinate, if he is of opinion, after hearing the evidence for the prosecution and the accused that the accused is guilty and that he ought to receive a punishment different in kind from or more severe than that which such Magistrate is empowered to inflict. The District Magistrate or Sub Divisional Magistrate, who receives the case, is to pass judgment after having due regard to clause 2 of the section. He can neither send back the case to the referring Magistrate nor transfer it to the file of some other Magistrate. There is no provision for the same in the Criminal Procedure Code. The cases reported in In re Sudalamada Kudumban ( AIR 1942 Mad. 281 ), In re Ponnuswamy Nadan ILR 36 Mad. 470, Empress v. Havia Tellappa (ILR 10 Bom. 196) and Emperor v. Thakur Dayal, ILR 26 All. 344 have also taken this view. So the action of the Sub Divisional Magistrate in sending the case to the First Class Magistrate was against the provisions of law and hence illegal.

(3.) The said section allows the District or Sub Divisional Magistrate alone to deal with the cases referred by the Second or Third Class Magistrate. The Sub Divisional Magistrate could not transfer to any other Magistrate the referred case under S.528 Cr.P.C. Vide Emperor v. Vinayak Narayan, AIR 1914 Bom. 217. The order of transfer was, therefore, passed by the Sub Divisional Magistrate without jurisdiction, and it is illegal. The First Class Magistrate has not passed a proper judgment. The Sub Divisional Magistrate had to consider the case and write a judgment as contemplated in S.367, Cr.P.C. The referee Magistrate is under the obligation to hear arguments from the pleaders present and to write a judgment giving his reasons for his order as in an ordinary calendar case tried entirely by him. Vide In re Pedda Kambi Reddy and Ors., AIR 1943 Mad. 345 , Khoda Bux Mal v. Ohadali Mal, AIR 1949 Cal. 308 , Lallu Ram v. Emperor, AIR 1939 Ouch 35, and Thakur Singh v. Emperor, 20 CriLJ 444 . Thus the transfer to the First Class Magistrate was illegal and the judgment pronounced by the First Class Magistrate was without jurisdiction. The judgment itself is not in accordance with law. In view of the several illegalities in this case we would have set aside the judgment and ordered fresh trial, but it is reported that the accused is dead. So we have only to point out the illegal and irregular procedure followed in the case for guidance and the reference is answered accordingly.