STATE Vs. JOSEPH

JUDGEMENT

(1.) This reference relates to the order passed by the Second Class Magistrate at Meenachil, committing the accused in C. C. No. 19/1959 to stand his trial before the Sessions Court for the offences punishable under S.379 read with S.75 of the Indian Penal Code. Before passing the order of committal the Magistrate had formally convicted the accused under these two sections. The committal order passed after such conviction is stated to be illegal and accordingly the learned Sessions Judge has referred the case to this Court under S.438 of the Code of Criminal Procedure with a recommendation that the illegal order passed by the Magistrate may be quashed and the Magistrate directed to proceed in accordance with law.

(2.) The procedure to be followed in the trial of the case mentioned above is that prescribed by S.348 of the Code of Criminal Procedure. Sub-s.(1) of that section runs as follows:-

(3.) If, on the other hand, the Magistrate feels that the case is one that ought to be committed to a superior court, he has to follow the procedure prescribed by S.347 or 348 of the Code of Criminal Procedure. S.347 lays down the general procedure to be followed in such a case. Sub-s.(1) of that section states that if in any enquiry before a Magistrate or in any trial before a Magistrate, before signing judgment, it appears to him at any stage of the proceedings that the case is one which ought to be tried by the Court of Session or the High Court, and if he is empowered to commit for trial, he shall commit the accused under the provisions herein before contained. Sub-s.(2) states that if the Magistrate is not empowered to commit for trial, he shall proceed under S.346 to have the case transferred to the court of another Magistrate having jurisdiction to deal with the same. S.348 deals with the special procedure to be followed in cases against persons accused of offences falling under Chapter XII or Chapter XVII of the Indian Penal Code and who have been previously convicted for a similar offence. Where the accused has to be committed for trial to the superior court under S.347 or S.348, the only effective order that the Magistrate is empowered to pass is the order of committal and he will be acting illegally if he signs and declares a judgment convicting the accused and then commits the accused to stand his trial by the superior court for the same offence. If the order of committal is vitiated in this manner that order as also the order convicting the accused have to be quashed and the case sent back to the Magistrate so that the accused may be properly committed to the superior Court after framing the necessary charge against the accused in the manner contemplated by S.210 of the Code of Criminal Procedure. The decisions in Emperor v. Po Yin (17 Criminal Law Journal Reports 201), In re Kora Sellandi ( AIR 1914 Mad. 149 ) and in In re Sangili Velan ( AIR 1944 Mad. 498 ) are also in support of this view.