Ramadoss vs State by S.I. of Police, Pularai

Paul, J.—This is a petition under S.482, Crl.P.C. for setting aside the order, dated 1st July, 1978 passed by the learned Sessions Judge,

Tirunelveli in Crl.R.C. No. 11 of 1977 on the file of his Court.

The petitioner, who was a Bill Collector of the local Panchayat, was convicted by the learned Sub-Divisional Judicial Magistrate, Shencottah of

an offence punishable under S.409, I.P.C. on his own admission and plea and the learned Sub-Divisional Judicial Magistrate, however, released

him under S.4(1) of the Probation of Offenders Act. The learned Chief Judicial Magistrate thereupon referred the matter to the learned Sessions

Judge of Tirunelveli who interfered in his revisional jurisdiction with the aforesaid illegal order of the learned Sub-Divisional Judicial Magistrate and

set aside the conviction as well as the order directing the release of the petitioner under S.4(1) of the Probation of Offenders Act and ordered

retrial. It is now contended by Mr. I. Subramanian that the order of the learned Sessions Judge is contrary to law, since the learned Chief Judicial

Magistrate had no jurisdiction to make a reference under the Criminal Procedure Code to the learned Sessions Judge, and further the learned

Sessions Judge failed to note that a copy of such order of reference was not furnished to the petitioner, and the learned Sessions Judge also failed

to note that the only course open under the circumstances was for the Public Prosecutor to proceed under S.337, Crl.P.C.

Undoubtedly, the order of the learned Sub-Divisional Judicial Magistrate releasing the petitioner, who was convicted of an offence under S.409,

I.P.C., is wrong and contrary to law, inasmuch as the provisions of S.4(1) of the Probation of Offenders Act cannot be invoked in regard to a

person convicted of an offence under S.409, I.P.C. Therefore, the learned Sessions Judge had jurisdiction to interfere in revision under Ss. 397

and 339, Crl.P.C. Nevertheless, Mr. I. Subramanian has contended that the learned Sessions Judge appears to have interfered in revision on a

reference by the learned Chief Judicial Magistrate and under the Criminal Procedure Code, there is no provision for a Chief Judicial Magistrate to

make such a reference to the learned Sessions Judge. I am afraid that this argument proceeds on a misconception, for, it is apparent that the

learned Chief Judicial Magistrate did not make the reference under any of the provisions of the Criminal Procedure Code, but merely on the

administrative side brought to the notice of the learned Sessions Judge that the learned Sub Divisional Judicial Magistrate had passed such an illegal

order and the learned Sessions Judge suo motu, had therefore, interfered in revision and set aside that illegal order of the learned Sub-Divisional

Judicial Magistrate as he is entitled to do under Ss.397 and 339, Crl.P.C. I may also mention that the only provision in the Criminal Procedure

Code, which mentions the word ""reference"", is S.395 which states that ""where any Court is satisfied that a case pending before it involves a

question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the determination

of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, but

has not been so declared by the High Court to which that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its

opinion and the reasons therefore ,and refer the same for the decision of the High Court."" Therefore, there is no question of the Chief Judicial

Magistrate making any reference under any of the provisions of the Criminal Procedure Code in regard to such a matter as this. He has merely

brought to the notice of the Sessions Judge the illegality of the order of the learned Sub-Divisional Magistrate. The question now is, whether the

learned Sessions Judge was right in having set aside the conviction also and ordering retrial. The conviction is in no way vitiated. It was only the

order passed by the learned Sub-Divisional Judicial Magistrate under S.4(1) of the Probation of Offenders Act that was illegal. Therefore, the

learned Sessions Judge should not have set aside the conviction and directed a retrial especially in this case where the conviction is based on an

admission and plea made by the petitioner himself. The learned Sessions Judge could have after setting aside the order of the Sub Divisional

Judicial Magistrate purporting to be under S.4(1) of the Probation of Offenders Act, remanded the matter back only for the purpose of enabling

the Sub Divisional Judicial Magistrate to pass a sentence according to law, inasmuch as the sentence alone was wrong and contrary to law.

Therefore, the order of the learned Sessions Judge setting aside the conviction and directing a retrial is set aside, and the learned Sessions Judge

will send back the matter to the learned Sub Divisional Judicial Magistrate for passing a sentence in accordance with law since the learned Sessions

Judge himself as remarked in his order that if the learned Sub Divisional Judicial Magistrate wanted to be considerate towards this accused as the

entire amount had been paid and he felt remorse for what be had done, he should have sentenced him to imprisonment till the rising of the Court

and imposed a nominal fine.