IN RE: PALLI MUNISAMI AND ANR. Vs. STATE

JUDGEMENT

(1.) THIS is a reference made by the Additional District Magistrate, Chittoor, under Section 438 of the Code of Criminal Procedure in the following circumstances. Two persons were tried by the Stationary Sub -Magistrate, Tirupathi, in C.C. No. 813 of 1946 for offences of theft and receiving stolen property. The first accused, P. Munisami, aged 18 years, was convicted by the Sub -Magistrate under Section 380 of the Code of Criminal Procedure in respect of the theft of a gramophone and a wireless set from the Military Stores, Renigunta. The second accused Krishniah was convicted under Section 411 of the Indian Penal Code for having dishonestly received those two articles knowing them to be stolen. The Stationary Sub -Magistrate after convicting the two accused considered that the first accused being a first offender and an adolescent should be dealt with under Section 562 of the Code of Criminal Procedure and in that view he forwarded the proceedings to the Sub -Divisional Magistrate, Chandragiri, for appropriate orders and in doing so he sent up both the accused to the Sub -Divisional Magistrate for being dealt with in accordance with law. The Additional District Magistrate considers that the legality of such a proceeding is not free from doubt in view of certain decisions of this Court and has solicited a definite ruling to meet cases of this kind.

(2.) THE proviso to Section 562 of the Code of Criminal Procedure enacts that where any first offender is convicted by the Magistrate of the third class or a Magistrate of the second class not specially empowered by the Provincial Government in this behalf and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect and submit the proceedings to a Magistrate of the first class or Sub -Divisional Magistrate, forwarding the accused to, or taking bail for his appearance before such Magistrate, who shall dispose of the case in a manner provided by Section 380. Section 380 of the Code of Criminal Procedure is to the following effect:

(3.) THESE two cases are not cases arising under Section 562. So far as Section 562 is concerned both that section and Section 380 form part of the same Code and they provide the necessary machinery and in that view Section 349(1 -A) may not in terms be directly applicable to such a case as has been held by Byers, J. But independently of Section 349(1 -A), the language of Sections 562 and 380, in my opinion, yields to the construction that what was intended was that if the Magistrate so chooses the entire proceedings, the whole case and all the accused may be forwarded. In any case it is not provided in these sections nor is it suggested by Byers, J., in his decision that such a course is repugnant in any manner to the language of Sections 562 and 380.