Somasundaram, J. -
(1.) THIS is a reference by the learned Sessions Judge of South Malabar under the following circumstances. The four accused were tried by the Second Class Magistrate, Fort Cochin, for an Offence under Section 323, I. P. C. The Magistrate found all of them guilty of the offence under Section 323, I. P. C. and sentenced accused 1 to a fine of Rs. 50, in default to two months rigorous imprisonment. In respect of the other accused, i.e., accused 2 to 4 he was of opinion that they should be dealt with under Section 562 (1 -A) Criminal P. C. and as he was not empowered to pass orders under the above section, he sent up the records to the sub -Divisional Magistrate, Port Cochin for action. The Sub -Divisional Magistrate, Fort Cochin, let off the accused with an admonition under Clause (1 -A) of Section 562, Criminal P. C. Accused 2 to 4, who were thus let off with an admonition, then preferred an appeal in C. A. No. 10 of 1952 to the Sessions Court, South Malabar. At the time of the hearing of the appeal, the Local Public Prosecutor raised an objection that the Second Class Magistrate was not competent to send to the Sub -Divisional Magistrate the case relating to accused 2 to 4 alone and that the entire records including the case of accused 1 should have been sent to the Sub -Divisional Magistrate. This objection was apparently based on a decision of this court in - - 'Emperor v. Narayanaswami Naidu', , 1936 Mad WN 235 (A). The learned Sessions Judge agreeing with the contention of the Public Prosecutor has made a reference to this court under Section 438, Clause (1) Criminal P. C. and has asked for appropriate orders to be passed. In his letter of reference, he refers to two other decisions of this court, which are reported in - - 'Piramanayagapandaram v. Emperor', : AIR 1943 Mad 390(B), and - - 'In re Munisami', : AIR 1948 Mad 86(C), and points out the conflict in authority.
(2.) THE question now is whether in the circumstances of this case all the accused should have been sent up or only the case of those, who in the opinion of the Second Class Magistrate are to be treated under Section 562, Clause 1 -A, Criminal P. C. should be sent up. The argument that all the accused must be sent up is based on the provisions of Clauses (1) and (1 -A) of Section 349, Criminal P. C., which are as follows : (His Lordship after quoting the provisions of the clauses proceeded to state:) This section has been interpreted by Pandrang Row J. in - -'1936 Mad WN . 235(A), to apply to cases like the present one, that is to say, that in such cases all the accused should be sent up. In that case, two accused were tried, the first for an offence under Sections 498 and 379 I. P. C. and the second for an offence under Section 379 I. P. C. Both were found guilty, but the first accused was sentenced to three months rigorous imprisonment and the case of the second accused was sent up to the Sub -Divisional Magistrate for being dealt with under Section 562, Clause (1). Pandrang Row J. held that the procedure followed is opposed to the express provisions of the law contained in Section 349(1 -A) Criminal P. C. The convictions of both the accused were set aside and the Magistrate was asked to forward both the accused to the Sub Divisional Magistrate, if he still thought that the second accused, should be dealt with under Section 562, Criminal P. C. A contrary view is expressed by Byers J. in - - : AIR 1943 Mad 390(B). In the above case, forty one persons were convicted by the Second Class Magistrate, and of them twenty eight were sentenced to three months rigorous imprisonment and the rest were sent up to the Sub -Divisional Magistrate for being dealt with under Section 562(1), Criminal P. C. The Sub Divisional Magistrate took the view relying on the decision in - -1936 M WN 235(A); that all the accused should have been sent up. HE therefore asked the District Magistrate to make a reference to the High Court. In the reference made by the District Magistrate, who did not agree with the view taken by the Sub -Divisional Magistrate, Byers J. held that Section 349 (1 -A) Criminal P. C. has no application to the procedure under Section 562, Criminal P. C. and the order of the Second Class Magistrate was upheld. The other decision referred to by the learned Sessions Judge - -' : AIR 1948 Mad 86(C)', is a decision by Yahya Ali J. This does not touch the point in question as it is a case in which the Second Class Magistrate tried two persons for the offence of theft and receipt of stolen property and convicted both of them; and though he was of the view that one of them should be dealt with under Section 562, Criminal P. C. he sent up the case of both the accused to the Sub Divisional Magistrate. Yahya All J. therein held that Section 562, Criminal P. C. read with Section 380, Criminal P. C. does not prohibit sending up both the accused to the Sub Divisional Magistrate.
(3.) ON a consideration of all the authorities and the relevant sections in Criminal P. C. I am of opinion that the view taken by Byers J. is the correct one. Section 349(1 -A) Criminal P. C. will apply only to cases which fall under Clause (1) of Section 349 Criminal P. C. Clause 1 of Section 349 Crl. P. C. will apply only to cases where the Magistrate is of opinion that the accused is guilty and that he ought to receive a 'punishment different in kind' (underlining is mine) or more severe than that which the Magistrate is empowered to inflict. The two circumstances, therefore, under which he may send up the records are (1) the punishment to be inflicted must be different in kind from that which he is empowered to inflict, (2) the punishment must be more severe than that which he can inflict. In no other circumstances can he send up the records under Section 349, Criminal P. C.;