STATE OF KERALA Vs. KUNHAMBU NAIR

JUDGEMENT

(1.) This reference has to be accepted. The order passed by the Sub Magistrate splitting up the case against the second accused and referring it to the Sub Divisional Magistrate for being dealt with under the Madras Children's Act as well as the order passed by the Sub Divisional Magistrate under S.25(1)(b) of the Madras Children's Act placing the accused in the custody of his father on the latter executing a bond to be responsible for the good behaviour of his son are both erroneous and illegal.

(2.) The order splitting up the case against accused 2 (a boy of 17) and sending it up to the Sub Divisional Magistrate for disposal is in violation of the provision of S.349-1(A) of the Criminal Procedure Code. The Magistrate's view that under that section he could forward only the accused who in his opinion is guilty is erroneous, (vide) AIR 1926 Sind 49, 1928 Madras Weekly Notes 72, 1941 Madras Weekly Notes 768 and 1945 (1) MLJ 241 ). The Magistrates should have sent up the case against both the accused for appropriate action by the superior court in order to avoid conflict of jurisdiction.

(3.) The order of the Sub Divisional Magistrate has also to be vacated for more reasons than one. In the first place the second accused who is found to be aged 17 is not a youthful offender coming within the purview of S.3(B) of the Madras Children's Act as it stood on the date of the States Reorganisation. Only boys under the age of 16 come within that category. Again though the accused pleaded guilty (even the plea does not appear to be one on the basis of which a conviction could be entered as the subsequent answers given by the accused strike a contrary note) no order was passed by the Sub Divisional Magistrate convicting the accused. It is only on convicting the accused that the Magistrate gets the jurisdiction to pass an order under S.25(1)(b). The suggestion of the Magistrate that the order passed by him under the Children's Act may be treated as one under the Probation of Offenders Act is also not acceptable, though it is open to him to act under that provision if occasion arises after a proper trial.