SHEARER, J. -
(1.) THE petitioners have been convicted of theft for having cut and carried away certain crops and have been sentenced to pay fines. Some of the petitioners are the sons of one Maharaj Rai, who was a Ghatwal, This Maharaj Rai died in or about 1943 and was sue ceeded in the office of Ghatwal by his eldest son Khelu Rai. Apparently, there is a dispute between Kbelu Rai and his brothers over the land on which these crops were grown, Khelu Rai asserting that it is part of this Ghatwali tenure and the petitioners asserting that it was the private property of Maharaj Rai and that on his death they as well as Khelu Rai have succeeded to his. interest in it. The petitioners were tried by a Magistrate with second class powers and, as two of them had been previously convicted, this Magistrate was of opinion that a sentence of more than six months' rigorous imprisonment was called for. Accordingly, he submitted the record with an expression of his opinion to the Sub -Divisional Magistrate, who sentenced one man to undergo rigorous imprisonment for seven months and another to undergo rigorous imprisonment for four months. On appeal, however, these sentences were reduced to sentences of fine by the Sessions Judge, as, before the appeal came on before him for hearing, the convictions of the two petitioners in the earlier case had been set aside. Mr. Gho3ftl, for the petitioners, now takes in somewhat extraordinary point that the learned trying Magistrate had no option but to commit his clients to the Court of Session and that the reference to the Sub -Divisional Magistrate under Section 349, Criminal P. C, being without jurisdiction the order which the Sub -Divisional Magistrate passed, convicting and sentencing the petitioners, was also necessarily without jurisdiction. In support of his contention Mr. Ghosal cited several decisions of the Madras High Court and the Chief Court of Lower Burma. The only one of the Madras de. oisions which is, in my opinion, directly in point is a decision of a Judge sitting singly in Pullic Prosecutor v. Sheikh Masoon A I. R. (33) 1946 Mad.l7l : l945 -2 M.L.J. 576. The decisions of the Lower Burma Chief Court are, King -Emperor v. Po Thwe, 8 Cri. L. J. 478 : i L.B.R, 282 and Emperor v. Po Yin, 17 ori. L. J. 201 : a. i. b. (8) 1916 L, B. 65. With the greatest respect, it appears to me that the construction which is put in these decisions on the provisions contained in Section 348, Criminal P. C. , is erroneous. It seems quite clear from the wording of the section that a Magistrate is not to commit a case to the Court of Session unless he is satisfied that there are sufficient grounds for committing it and, if in the opinion of the Magistrate a sentence of two years' rigorous imprisonment would be more than sufficient to meet the ends of justice, it is difficult to say that there are sufficient grounds for committing. Moreover, the section to my mind, presupposes that the Magistrate has power to commit to the Court of Session. To suppose that the Legislature intended that in every case of petty theft which comes before a Magistrate of the third class that Magistrate is empowered by this section and in fact is be und to commit all the accused to the Court of Se9Sion if any one of them is shown to have had a previous conviction is, to my mind, absurd. In this particular case, the learned Magistrate may well have been unable, until the very end of 'the trial, to say that he himself could not impose an adequate sentence. I can see no reason why in a case of this kind a Magistrate with powers of the second class, who sees no sufficient ground for committing the case to the Court of Session, should not proceed with the trial and, if at the end of the trial he comes to the conclusion that a sentence more severe than one he can pass should be inflicted, should not refer the case under Section 349 of the Code. Mr. Ghosal next pointed out that the learned trying Magis -trate had concluded his judgment by observing. "In the end, therefore, I find them guilty and convict them" and had gone on to explain why he referred, the case under Section 349. It was, of course, wrong for the learned trying Magistrate to pronounce a conviction, but it is quite clear that he merely intended to refer the case to the Sub -Divisional Magistrate, leaving it to him to convict and pronounce such sentence as appear -ed to him suitable, and it is also quite clear that the learned Sub -Divisional Magistrate dealt with the reference in that way, as he himself has written a very full and clear judgment. In these circumstances, the passage in the judgment of the learned trying Magistrate, to which I have referred, must; be regarded as a mere "surplusage and as a legal nullity," vide Emperor v, Narayan Dhaku Bhil, 5S be m. 466 : a. I. E. (15) 1928 be m. 240: 29 Cr. L. J. 904). Finally Mr. Ghosal invited us to say that this was a case of a lona fide dispute over land and on that ground to set aside the convictions. It is,. however, difficult to see how the dispute can be a be na fide one as Maharaj Kai died as long ago as 1943. In any view, the Courts below have be to come to quite a clear finding that the crop which the petitioners cut and removed had been grown by and belonged to Khelu Eai. In my opinion this application must be dismissed.
(2.) I agree.;