K ACHI Vs. K MADHUSUDHAN PATRA

JUDGEMENT

(1.) THIS reference has been made by the Sessions Judge, Ganjam -Nayagarh on a difference of opinion between him and the Additional District Magistrate, Ganjam, as to the forum in which the appeal of the accused persons will lie.

(2.) THE short facts are that four persons were tried by a Magistrate, III Class in C. C. 18 of 1952 and convicted of the offence of trespass, mischief, and assault. The trying Magistrate awarded sentences of fine on three of the accused persons and referred the case of the fourth accused to the Sub -divisional Magistrate in the following terms:

(3.) BUT apart from the question whether an appeal lies against a mere conviction (unaccompanied fay a sentence), the question at issuehere is whether the procedure adopted by the trying Magistrate and the Additional District Magistrate is warranted by law. Section 349 of the Cr. P. C. provides for cases where the Magistrate cannot pass a sentence, sufficiently severe, or where he is of opinion that the person convicted should receive punishment, different in nature from that which such Magistrate is empowered to inflict. In the present case, as one of the accused persons was a juvenile offender the Magistrate thought that he should receive a sentence which he was not competent to pass, namely, a sentence under Section 562 of the Cr. P. C. The Sub -divisional Magistrate was, therefore, right in treating the reference made to him by the Magistrate as one under S, 349 and he accordingly passed a sentence of warning under Section 562. The proviso to Section 562 (1) lays down that, in such cases, where the trying Magistrate is of opinion that the powers conferred by that Section should be exercised, he shall record his opinion to that effect and submit the proceedings to a Magistrate, First Class, or to the Sub -divisional Magistrate who shall dispose of the case in the manner provided in Section 380. Section 380 empowers the Subdivisional Magistrate to