P S NARAYANA IYER Vs. SUBRAMONIA IYER

JUDGEMENT

(1.) pw. 1 in C. C. No. 4 of 1957 on the file of the Special Second Class Magistrate, Ponnanl has preferred this criminal revision petition against the acquittal of the accused who were tried for offences under S.447 and 426 of the Indian Penal Code.

(2.) After the examination of pw. 1 the trial Magistrate submitted the case to the District Magistrate with a report that as an offence under S.506 (2) was also disclosed the case should be transferred to the file of a Magistrate com petent to try the case. The District Magistrate sent the case back to the trial ' Magistrate with a direction that he should proceed with the examination of the witnesses for the prosecution and that if he were of the opinion that a case triable only by a First Class Magistrate was made out, he should then submit the case to the District Magistrate under S.346 of the Code of Criminal Procedure. After receipt of the records the trial Magistrate tried the case and found that the only offences disclosed were those under S.447 and 426 and that the accused were not guilty. He accordingly acquitted the accused and pw. 1 has preferred this revision petition from the order of acquittal.

(3.) The only point raised in revision is that the District Magistrate was i not competent to send back the case to the same Magistrate and that he should have sent the case to some other Magistrate. It was argued that the District Magistrate had no jurisdiction to send the case back to the same Magistrate and that the latter was therefore incompetent to try the case. A Full Bench of the Madras High Court has held in Polur Reddi v. Munnusami Reddi and others (AIR 1930 M. 765) that the terms of sub-s.2 of S.346 are wide to embrace a reference back of the case to the Magistrate who originally submitted it. The Bombay High Court has taken a different view. Following earlier decisions of the court, a Division Bench dissented from the view taken by the Madras High Court in the case cited above. See Haidarsha Lalsha Pathan v. Dhondu Abaji Sandbhor and others (AIR 1942 Bom. 84). It was held in that case that the District Magistrate acting under S.346 had no power to revise the opinion of the subordinate Magistrate and that the Madras view was likely to lead to an embarassing situation if the subordinate Magistrate remained unconvinced. With great respect I am inclined to follow the Madras view in preference to that of the Bombay High Court. The District Magistrate is not bound to accept the reference of the subordinate Magistrate in every case. The present case was one taken on a police report according to which the acts alleged to have been committed by the accused did not constitute an offence under S.506(2). In order to make the offence more serious, PW 1 alleged that an offence under S.506(2) was also committed but the rest of the evidence did not support his case. Following the Madras view I hold that the District Magistrate had jurisdiction to send the case back to the Magistrate, who made the reference to him.