RAM NATH SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS application in revision is directed against the judgment and order dated the 25th of November, 1969, passed by Shri B. N. Pradhan. first Additional Sessions Judge, Patna, modifying the sentence passed against, the petitioner for an offence under Section 379 of the Indian Penal Code and sentencing him to one year's rigorous imprisonment.

(2.) THE petitioner was being tried for an offence under Section 379 of the Indian Penal Code by Shri A.S. Lal, Munsif-Magistrate, Second Class. After examination of witnesses and hearing the parties, Shri A.S. Lal came to the conclusion that the prosecution had proved the charge under Section 379 of the Indian Penal Code and, accordingly he by his order dated the 24th of November, 1965, convicted him for the offence under that section. Since the Assistant District Prosecutor had prayed that the case be transferred to the court of Sessions Judge for getting the accused sentenced to adequate term of imprisonment, Shri A.S. Lal did not pass the sentence but sent the record to Sessions Judge, Patna, for the needful.

(3.) MR. Alakh Sunder Prasad. appearing on behalf of the petitioner, has vehemently argued that the conviction and sentence as recorded, cannot be allowed to stand inasmuch as there has been a violation of the provisions of Sub-Sections (1) and (2) of Section 349 of the Code of Criminal Procedure (hereinafter referred to as 'the Code'). Sub-Section- (1) inter alia says that whenever a Magistrate of second or third class is of opinion after hearing the evidence for the prosecution and the accused, that the accused is guilty, and that he ought to receive a punishment more severe than that such Magistrate is empowered to inflict, he may record the opinion and submit his proceedings, and forward the accused to the District Magistrate or Sub-divisional Magistrate to whom he is subordinate. Contention of the learned Counsel is that regard being had to the provisions of this Sub-Section, Shri A.S. Lal was authorised only to record his opinion and then to submit the proceedings to the District Magistrate or Sub-divisional Magistrate and not to convict the petitioner, as he has done in the present case.