KATAF CHINA FAREED Vs. STATE OF ANDHRA

JUDGEMENT

(1.) THIS is a revision against the concur-rent judgments of conviction and sentence by the lower Courts of A-2 and A-3 for offences under Sections 457 and 380, Indian Penal Code. A-l who is a child of 14 and A-2 and A-3 who arc about 44 years old were charged with the theft of some groundnuts from a godown of Satyanarayuna Factory is Narasaraopet by opening the lock. Accused 2 and 3 were seen to be carrying some bags of groundnut when the night watchmen P. Ws. 1 and 2 who were patrolling on hearing the noise in the godown focussed the battery light and saw A-2 and A-3 with two bundles on their shoulders and challenged them. On being challenged they dropped the bundles and ran away and in spite of giving a chase they were not apprehended. It was alleged by the prosecution that A-2 was known, to P. Ws. 1 and 2 as he was working in the factory and A-3 was a continual visitor to A-2. After both the accused ran away, P. W. 2 saw A-l coming out of the godown with a bundle of groundnut and caught him red-handed. These bundles were seized and as P. W. I knew A-2 and A-3 he reported the matter to the Manager of the factory who sent in a report and in the F. I. R. names of all the three accused appear. On the evidence produced before the Stationary Sub-Magistrate, Narasaraopet, he convicted the accused, but having regard to the fact that A-l was a child of 14 years, he sent the case of all the three accused to the Sub-Divisional Magistrate, Narasaraopet, The Sub-Divisional Magistrate sentenced A-2 and A-3 to three months R. I. under each of the Sections 457 and 380, sentences to run concurrently, and with respect to A-l he ordered a bond to be executed for good behaviour. Against these sentences A-2 and A-3 alone appealed to the Additional Sessions Judge, Guntur, who confirmed the conviction and sentences.

(2.) BOTH before the Additional Sessions Judge and here the accused challenged the jurisdiction of the Sub-Divisional Magistrate, Narasaraopet, to entertain the record for purposes of awarding a sentence and that the right of the accused to have a de novo trial has been taken away by adopting this procedure. Learned advocate for the petitioners submits that the Sub-Divisional Magistrate acted under Section 5 of the Probation of Offenders Act and relying upon the judgment of Kuppuswami Ayyar, J. , in Public Prosecutor v. Munian 1943 Mad WN 806 : AIR 1944 Mad 207 (A), ho contends that all the accused could not have been sentenced under the provisions of the Madras Probation of Offenders Act. What the Stationary Sub-Magistrate should have done was to have sentenced A-2 and A-3 and sent the case of A-l alone; in other words, if he had not done so and the case was sent to the Sub-Divisional Magistrate, the Sub-Divisional Magistrate should have merely dealt with the case of A-l under the Madras Probation of Offenders Act and sent back the case of A-2 and A-3 for awarding a sentence according to law. In any case he says the provisions of Section 349, Criminal Procedure Code do not apply. In order to determine this contention it is necessary to see what the order of the Stationary Sub-Magistrate is, The Stationary Sub-Magistrate after recording the evidence, convicted the accused and sent the case of all three to the Sub-Divisional Magistrate because A-l is a child. This is because of the provisions of Section 5 of the Madras Children Act No. IV of 1920 which is as under:

(3.) IT is, therefore, clear that under this section he was entitled to send the case of A-l who within the meaning of that Act was a young person. A young person is defined by Sub-section (2) of Section 3 as one who is fourteen years of age or upwards and under the age of sixteen years. There is nothing in the order of the Stationary Sub-Magistrate which is contrary to the provisions of the above Act. What the learned advocate for the petitioners contends is that the Sub-Divisional Magistrate purported to act under Section 4 (1) of the Madras Probation of Offenders Act No. III of 1937. Even under that Act, Section 5 provides for a similar procedure and is as follows: Notwithstanding anything contained (in) Sections 3 and 4, where any first offender is found guilty of an offence by a Magistrate of the third class, or a Magistrate of the second class not specifically empowered by the State Government in this behalf, and the Magistrate is of opinion that the powers conferred by me said sections should be exercised, he shall record life 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 may thereupon pass such sentence or make such orders as he might have passed or made if the case had originally been heard by him, and, if he thinks further inquiry or additional evidence on any point to be necessary, he may make such inquiry or take such evidence himself or direct such inquiry or evidence to be made or taken.