Kataf China Fareed And Another v. State Of Andhra .

1. This is a revision against the concurrent judgments of conviction and sentence by the lower courts of A-2 and A-3 for offences under Sections 457 and 380 I.P.C A-1 who is a child of 14 and A-2 and A-3 who are about 44 years old were charged with the theft of some groundnuts from a godown of Satyanarayana Factory in 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-1 coming out of the godown with a bundle of groundnut and caught him redhanded. These bundles were seized and as P.W 1 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-1 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-1 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 M.W.N 806., he 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-1 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-1 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 Cr. P.C 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-1 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:

“(1) When any magistrate not empowered to pass an order under this Act is of opinion that a child or young person brought before him or convicted by him is a proper person to be committed to a certified school or to be dealt with in any other manner in which the case may be dealt with under this Act, he shall record such opinion and submit his proceedings and forward the child or young person to the District Magistrate or Sub-Divisional Magistrate to whom he is subordinate or to the Magistrate presiding over the nearest juvenile court having jurisdiction in the case.

(2) The Magistrate to whom the proceedings are so submitted may make such further enquiry (if any) as he may think fit and may pass such order dealing with the case as he might have passed if the child or young person had originally been brought before or tried by him.”

3. It is therefore, clear that under this Section he was entitled to send the case of A-1 who within the meaning of that Act was a young person. A young person is defined by Sub-section (2) of Sec. 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 Sec. 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 the said sections should be exercised, he shall record his 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 evidence to be made or taken.”

4. The question in this case is not whether the Sub-Divisional Magistrate had acted without jurisdiction under the Probation of Offenders Act in so far as A-1 is concerned; but whether he had jurisdiction to sentence A-2 and A-3 under the provisions of the Indian Penal Code, viz., under Sections 457 and 380, once the case has been sent up to him under Section 5 of the Madras Childern's Act. There is no revision filed by A-1 and the question whether the order passed in his case is valid or not is not now before me. All that I have to consider is whether the Sub-Divisional Magistrate had jurisdiction to pass sentence against A-2 and A-3 on a conviction by the Stationary Sub-Magistrate. The case of Public Prosecutor v. Munian was one where none of the accused were convicted and the entire file was sent under Sec. 5 of Madras Probation of Offenders Act No. III of 1937 and the Sub-Divisional Magistrate thereupon convicted all the accused. What was decided in that case is that the Sub-Divisional Magistrate has not been vested with any power to convict or acquit the accused under Sec. 5 of that Act which is a special section, but he has been only vested with jurisdiction to award merely a sentence. It was contended in that case that the second class Magistrate must be deemed to have forwarded the case under Sec. 349; but that argument was repelled because there was no conviction and it is only where the forwarding Magistrate has convicted the accused that action can be taken under Sec. 349. Kuppuswami ayyar, J., at page 807 observed:

“The second class Magistrate of Pollur therefore ought to have found the accused guilty and sent the papers to the Sub-Divisional Magistrate for taking action with regard to the first accused alone under the provisions of Act III of 1937. The order of the Sub-Divisional Magistrate acquitting the accused is set aside and he is ordered to return the papers so far as accused 2 to 4 are concerned to the second class Magistrate of Pollur for taking action … … … …”

5. Learned advocate for the petitioner contends on the basis of this passage that the Sub-Divisional Magistrate should have remanded the case of A-2 and A-3 to the Stationary Sub-Magistrate for the purposes of awarding a sentence and should have only dealt with the case of A-1. As against this judgment the learned Public Prosecutor has cited a Bench judgment of the Madras High Court in the case of Subbai Goundan2, where a case similar in point arose for the determination of Sir Lional Leach, C.J, and Shahabuddin, J. In that case three persons were a ccused with offences punishable under Section 355 I.P.C The 1st and 3rd accused were adults while the 2nd accused was a boy of 14 years of age and therefore a young person within the meaning of the Madras Children Act. The Stationary Sub-Magistrate was of the opinion that all the accused were guilty of the offence with which they were charged and sentenced each of the adults to pay a fine of Rs. 40/- and in default to suffer rigorous imprisonment for two months. He considered that the second accused should be dealt with under the Children Act and accordingly referred his case alone to the Joint Magistrate, Pollachi, under Section 5 of that Act. The question that arose in that case was whether the Stationary Sub-Magistrate was right in sentencing A-1 and A-3 while forwarding the case of A-2 under the Children's Act. It was contended that under sub-section (1-A) of Section 349 the case of all the accused should have been forwarded for sentence. It was there held that the contention was sound and that the proper course was for the Magistrate to send the records of all accused to the Sub-Divisional Magistrate for sentence. In the result they set aside the conviction of the first and third accused and the case of these accused was sent back to the Joint Magistrate, Pollachi, for necessary action. During the course of the judgment, it was pointed out that the action of the Stationary Sub-Magistrate clearly fell within sub-section (1) of Section 349 of the Criminal Procedure Code which meant that he could not convict any of the accused and was required to send all of them to the Joint Magistrate. The High Court observed that it has been suggested that the Children's Act stands quite apart from the Criminal Procedure Code and that it could never have been intended that Section 349 of the Code should be applied when a Magistrate wished to have a child or youthful offender dealt with under the Children Act. In inquiring into the intention of the Legislature we can only have regard to the words used in the statute. There is nothing in the Criminal Procedure Code which posed a case in which there are several accused and one of them is a child or youthful person outside the provisions of Section 349 and the same observation applies to the Children Act. The above decision of the Bench of the Madras High Court appears to me to clearly govern the facts and circumstances of this case. Section 349 (1-A) is also clear on the point when it provides that when more accused than one are being tried together and the Magistrate considers it necessary to proceed under Sub-section (1) in regard to any of such accused, he shall forward all the accused who are in his opinion guilty to the District Magistrate or Sub-Divisional Magistrate. There is nothing in the Children's Act or the Probation of Offenders Act to militate against this provision and I see no reason why action could not be taken under this Section.

6. Learned advocate for the petitioner further contends that the right of de novo trial which his client would have under Section 350 Cr. P.C has been taken away because of the action of the Stationary Sub-Magistrate in sending the case of A-2 and A-3. He contends that under Sections 5 of both the Children's Act and the Probation of Offenders Act, he would have been entitled to a de novo trial under proviso (a) to Sec. 350 Cr. P.C before its amendment, as Sub-section (2) of Section 350 Cr. P.C does not specifically except cases falling under the above section in the same way as the cases referred under Sec. 349 or Section 346 are excepted. I fail to appreciate this argument because, if that contention is sound, Section 5 of both the Probation of Offenders Act and the Children Act, would become otiose. The whole object of these two sections, is that the Magistrate who is not empowered to Act under the provisions of the respective Acts should convict the accused and only send them up for sentence to a Magistrate exercising higher powers such as a Sub-Divisional Magistrate or District Magistrate. It is not there contemplated that the Sub Divisional Magistrate or District Magistrate to whom cases are sent under Section 5 of the respective Acts should hold a de novo trial and come to a definite conclusion as to the guilt or otherwise of the accused. If this is the effect of Section 350 Cr. P.C upon the Section 5 of the Children's Act and Section 5 of the Probation of Offenders Act, then those sections would become ineffective and inoperative. I do not read the provisions of those sections in the manner contended by the learned advocate for the revision-petitioners and having regard to a Bench Judgment of the Madras High Court to which I have already adverted, there seems to be no force in this contention.

7. The next submission addressed by the petitioners' advocate is that there is not sufficient evidence to convict the revision-petitioners. He has taken me through the evidence and having regard not only to the concurrent judgments of the lower courts, but also to the fact that P.W 1 knew the accused well and that he had immediately given their names and that they found a place in the F.I.R sent that very morning, I cannot consider the conviction to be based on insufficient evidence. The question which now remains is whether the term already undergone would be sufficient. In this case no doubt an attempt was made to steal groundnuts and the accused were unsuccessful in their attempt and since it does not appear that they were previous offenders, interests of justice would be served if the sentence is reduced to one month on each count to run concurrently instead of three months and in serving out this one month's sentence, the period already undergone may be taken into account. The sentences to run concurrently.

T.R.R

8. Sentence reduced.