A Magistrate's proceedings are not void if he tries an offender for an offence within his jurisdiction, even if the same facts disclose a more serious offence beyond his jurisdiction. Deliberately ignoring aggravating facts would render the proceedings improper, but not void.

Horwill, J.

1. The prosecution case was that the Deputy Tahsildar saw a number of goats grazing in the forest and that finding that the owner had no license for so grazing them, he proceeded to drive them to the cattle pound. On the way, the Deputy Tahsildar was met by the first and second accused, who are brothers and owners of the goats, and by the third accused, their friend. Without disclosing the fact that the first and second accused were the owners of the goats they told the Deputy Tahsildar that they would assist him in driving the goats to the pound and they led him not to the pound but to their own pen. The Deputy Tahsildar duly drove the goats into the pen and upon entering the village to inform the village magistrate, he was told that the enclosure into which he had driven the goats was not a cattle pound but a private pen of the owners of the goats. The Deputy Tahsildar thereupon filed a complaint in the Court of the local Sub-Magistrate, and in due course a charge was framed against all the three accused under Sections 417 and 379, Indian Penal Code. The case has not yet ended; but this revision petition was admitted because it was contended on behalf of the accused that the offence actually committed was one under Section 420, Indian Penal Code, an offence punishable only by a First Class Magistrate.

2. The leading case on the question as to the effect of trying persons for an offence less serious than was actually committed is to be found in King Emperor v. Ayyan I.L.R.(1901) Mad. 675 a decision of a Bench of this Court. The argument of the learned advocate for the petitioners is that the act of the Magistrate, whether the framing of the charge for a lesser offence was deliberate or not, makes his proceedings void; because Section 530-p of the Criminal Procedure Code says that if any Magistrate, not being empowered by law in this behalf, tries an offender, the proceedings shall be void. What that really means is pointed out in the case above referred to in these words:

The meaning of this is that if a Magistrate tries an offender for an offence beyond his jurisdiction his proceedings shall be void. In the present case the Deputy Magistrate did not try accused for an offence beyond his jurisdiction. He tried him for an offence punishable under Section 193, Indian Penal Code, that is, for an offence triable by a First Class Magistrate and therefore within his jurisdiction. His proceedings therefore were not void and the Sessions Judge was wrong in treating them as void. Where the facts disclose an offence within the jurisdiction of the Magistrate it seems to us a complete fallacy to say he is not empowered by law to try the person charged for the offence which is within his jurisdiction because the same facts disclose a more serious offence which is beyond his jurisdiction. He is expressly so empowered. Whether in so doing he adopts a proper course is another question. No doubt it is improper on the part of a Magistrate to intentionally ignore circumstances of aggravation which show that an offence beyond his jurisdiction was in fact committed as well as an offence within his jurisdiction.... It would also, in our opinion, be open to the revising and appellate authorities to set aside the Magistrates proceedings and order a fresh trial, if such a course was required in the interests of justice but not otherwise; and the reason for setting them aside would be, not that they were void ab initio, but because they were improper and the interests of justice required them to be set aside.

3. A similar. question came up before Jackson, J., in Kattuva Rowther v. Suppan Asari (1926) 25 L.W. 86. The learned Judge draws from King Emperor v. Ayyan I.L.R.(1901) Mad. 675 the following proposition:

If a Magistrate entirely overlooks some fact which would carry, the case beyond his jurisdiction and tries the accused for a lesser offence, he is not held to have acted without jurisdiction. The question whether he has or has not en