Full Judgment
1. The accused in C.C.No.58/2004 on the file of Special Judicial Magistrate, Tirupattur seeks quashing of the order dated 31.08.2006 of learned Chief Judicial Magistrate, Vellore remanding back the said calendar case to the Special Judicial Magistrate, Tirupattur.
2. According to Mr. S. Baskaran, learned counsel for the petitioner, once the trial court referred the case under section 325 Cr PC to the Chief Judicial Magistrate, Vellore for imposing severe sentence, again the Chief Judicial Magistrate cannot remand back the case to the referral Magistrate. In support of his proposition, Mr. Baskaran cited In re Sundalamada Kudumban [AIR (29) 1942 Madras 281 (2)]. Thus, he would submit that the impugned order dated 31.08.2006 of the learned Chief Judicial Magistrate is required to be quashed.
3. Mrs. MF. Shabana, learned Government Advocate (Criminal Side) would submit that even the Chief Judicial Magistrate to whom the case was sent, has to deal with the case in accordance with the provisions of section 325 Cr PC and the relevant provisions of Tamil Nadu Forest Act.
4. This case involves the procedure that a Chief Judicial Magistrate shall follow in exercising his power u/s. 325 Cr PC.
5. The petitioner was prosecuted for offences under section 21 (d,e,f) & 36 (A) & (E) of Tamil Nadu Forest Act before the learned Special Judicial Magistrate, Tirupattur. After trial, the learned Magistrate found him guilty of the said offences. After coming to such a conclusion, the learned Special Judicial Magistrate, on 14.12.2004, passed the following order: ' Accused present. The accused is found guilty u/s. 21 (d,e,f) & 36 (A) & (E) of T.N.F. Act. Since the court doesn't have jurisdiction to pass sentence upon the accused, the entire case records is submitted to the Hon'ble Chief Judicial Magistrate, Vellore u/s. 325(1) Cr PC. Hence, the accused is directed to appear before the Hon'ble Chief Judicial Magistrate Court, Vellore on 28.12.2004 without fail. Hence, call on 28.12.2004. Sd/---
Special Judicial Magistrate
Tirupattur. '
6. It seems that the learned Special Judicial Magistrate, after recording the finding of guilty as against the petitioner did not want to proceed to the next stage, namely, imposing of punishment etc. Thus, referred the case to the Chief Judicial Magistrate, Vellore for taking the next step. In so doing, the learned Special Judicial Magistrate acted under section 325 (1) Cr PC.
7. On 31.08.2006, the learned Chief Judicial Magistrate, Vellore returned the case to the Special Judicial Magistrate, Tirupattur passing the impugned order, which runs as under: 'Accused present. Entire bundle sent to Special Judicial Magistrate, Tirupattur. Accused appear on 08.09.2006 Special Judicial Magistrate's Court, Tirupattur. Sd/---
Chief Judicial Magistrate
Vellore '
8. Now the question arises whether the learned Chief Judicial Magistrate without taking further action was right in sending back the case to the trial court.
9. It is apt here to refer the provisions of section 325 Cr PC, which runs as under:
'Section 325.Procedure when Magistrate cannot pass sentence sufficiently severe .-- (1) Whenever a Magistrate 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 different in kind, from or more severe than, that which such Magistrate is empowered to inflict, or, being a Magistrate of the second class, is of opinion that the accused ought to be required to execute a bond under section 106, he may record the opinion and submit his proceedings, and forward the accused, to the Chief Judicial Magistrate to whom he is subordinate. (2) 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 Chief Judicial Magistrate. (3) The Chief Judicial Magistrate to whom the proceedings are submitted may, if he thinks fit, examine the parties and call and examine any witness who has already given evidence in the case and may call for and take any further evidence, and shall pass such judgment, sentence or order in the case as he thinks fit, and as is according to law.
10. Section 325 in the New Code of 1973 corresponds to section 349 in the Old Code of 1898. A similar situation arose under the old Code in In re Sundalamada Kudumban [AIR (29) 1942 Madras 281 (2)] before our High Court. In this case, the learned Sub-Magistrate, Srivaikuntum found the accused guilty under section 324 IPC and taking a view that the accused has to be dealt with under Section 106 Cr PC (security proceedings) referred the case under section 349 (1) Cr PC to his immediate superior officer, namely, the Sub-Divisional Magistrate. However, the learned Joint Magistrate coming to the conclusion that it was not necessary to invoke Section 106 Cr PC sent the case back to the Sub-Magistrate. Horwill J., held that, under Section 349(2) Cr PC, the Joint Magistrate had no power to do so and set aside the order of the Joint Magistrate, after observing as under: 'It is thus seen that the Magistrate was bound to dispose of the case himself; although he was not, ofcourse, obliged to pass an order of the nature considered appropriate by the Stationary Sub-Magistrate. The order passed by the Joint Magistrate dated 12th February 1941 remanding the case to the Sub-Magistrate for disposal is therefore set aside and the Joint Magistrate ordered to dispose of the case according to law under Section 349(2) Cr PC.
11. As in the Old Code analogous provision is found in Section 325 Cr PC. Section 325 Cr PC enables the Magistrate to refer the case to his superior officer, namely, the Chief Judicial Magistrate. Such a power is specifically conferred upon the Magistrate under section 325 (1) Cr PC. To exercise this referral power, there are twin requirements. First, the Magistrate must record a finding of guilty. Next, the Magistrate must form an opinion that the accused deserve a different kind of punishment or more severe punishment than that which he is empowered to inflict upon him. The learned Magistrate must record a definite finding on both the counts. Thus, it is seen that Section 325(1) Cr PC specifically deals with the procedure that a referral Magistrate should follow when he elects to send the case to his Superior Officer for performing the tasks prescribed in Section 325 (1) Cr PC.
12. Section 325(3) Cr PC deals with the procedure to be followed and also the power to be exercised by a Chief Judicial Magistrate with regard to a case referred to him by the Magistrate under Section 325 (1) Cr PC. While exercising his power under section 325 (3) Cr PC, the Chief Judicial Magistrate is not obliged to follow the conclusion/ finding arrived at by the referral Magistrate. The power of the Chief Judicial Magistrate under section 325 (3) Cr PC is separate and independent of Section 325 (1) Cr PC.
13. The Chief Judicial Magistrate could admit, if necessary, further oral and documentary evidence. It may take the form of a request under Section 311 Cr PC or defence evidence. Still it is always subject to proof and relevancy. Ultimately, after hearing both sides he may come to a different conclusion than that of the referral Magistrate.
14. A criminal courts verdict has two parts. A mere finding of a criminal court is no judgment. It is one part of the decision of the Court. It transforms into a judgment only when sentence or order, as the case may be, is passed. The phraseology shall pass such judgment, sentence or order used at the penultimate part of Section 325(3) Cr PC brings out the above.
15. In the administration of Criminal justice it is not crime alone. It is crime and punishment. A crime, has been so defined or prescribed by the Legislature. It is within the province of Legislature. When the ingredients of a crime as prescribed is established, the finding of guilty has to be recorded. Then comes punishment part. In Section 325(3) Cr PC, besides the word sentence, the word order also has been employed. In sentencing the accused, the court has to take into account the penological and sociological considerations. It is not sentence alone. The court may pass other appropriate order to meet the ends of justice. That is how in Section 325(3) Cr PC the phrase order also has been added.
16. We have seen the ambit, purport, scope and power of a Chief Judicial Magistrate under section 325 (3) Cr PC. Once a case is referred by the Magistrate to the Chief Judicial Magistrate he alone has to take further action as per the procedure prescribed and the power conferred upon him under section 325 (3) Cr PC. He cannot disown it nor delegate it unless it is a case falling under section 323 Cr PC (commitment of case to Sessions Court).
17. This is the position, both under the Old Code and the New Code. On this aspect of law, I am totally in agreement with the view of Horwill J., in In re Sundalamada Kudumban (supra).
18. Thus, in this view of the matter, the order of Chief Judicial Magistrate, Vellore dated 31.08.2006 remanding back the calendar case in C.C. No.58/2004 to the referral Judicial Magistrate, Tirupatttur is manifestly erroneous. It is required to be annulled.
19. Ultimately, this Criminal Original Petition is allowed and the order of the Chief Judicial Magistrate, Vellore dated 31.08.2006 sending back the case in CC. No. 58/2004 to the Special Judicial Magistrate, Tirupattur is set aside and the Special Judicial Magistrate shall send back the case records to the Chief Judicial Magistrate, Vellore, who will take further action in accordance with Section 325 (3) Cr PC. Consequently, the connected M.P. No.1/2007 is closed.