This is a reference made by the Additional District Magistrate, Chittoor, under section 438 of the Code of Criminal Procedure in the following circumstances. Two persons were tried by the Stationary Sub-Magistrate, Tiru-pathi, in C.C. No. 813 of 1946 for offences of theft and receiving stolen property. The first accused, P. Munisami, aged 18 years, was convicted by the Sub-Magistrate under section 380 of the Code of Criminal Procedure in respect of the theft of a gramophone and a wireless set from the Military Stores, Renigunta. The se ond accused Krishniah was convicted under section 411 of the Indian Penal Code for having dishonestly received those two articles knowing them to be stolen. The Stationary Sub-Magistrate after convicting the two accused considered that the first accused being a first offender and an adolescent should be dealt with under section 562 of the Code of Criminal Procedure and in that view he forwarded the proceedings to the Sub-Divisional Magistrate, Chandragiri, for appropriate orders and in doing so he sent up both the accused to the Sub-Divisional Magistrate for being dealt with in accordance with law. The Additional District Magistrate considers that the legality of such a proceeding is not free from doubt in view of certain decisions of this Court and has solicited a definite ruling to meet cases of this kind.

The proviso to section 562 of the Code of Criminal Procedure enacts that where any first offender is convicted by the Magistrate of the third class or a Magistrate of the second class not specially empowered by the Provincial Government in this behalf and the Magistrate is of opinion that the powers conferred by this section 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 shall dispose of the case in a manner provided by section 380. Section 380 of the Code of Criminal Procedure is to the following effect:

“Where proceedings are submitted to a Magistrate of the first class or a Sub-Divisional Magistrate as provided by section 562, such Magistrate may thereupon pass such sentence or make such order 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 take such evidence himself or direct such inquiry or evidence to be made or taken.”

These two sections practically constitute in themselves a complete and self-sufficient machinery to meet cases of this description and it is hardly necessary to invoke the aid of section 349 of the Code of Criminal Procedure to determine whether in such cases all the accused should be sent up or only the person against whom action under section 562 of the Code of Criminal Procedure is contemplated. Section 349(1) lays down the procedure when a Magistrate cannot pass a sentence that he considers to be appropriate to meet the ends of justice in a case. He may in such a case forward the accused to the District Magistrate or Sub-Divisional Magistrate to whom he is subordinate. Sub-section (1-A) of that section reads:

“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.”

Thus it will be seen that in this sub-section statutory provision has been expressly made requiring that in a case where the Magistrate has decided to take action under section 349 he must forward all the accused who are in his opinion guilty. In such a case he does not convict the accused but only records his opinion that the accused is guilty and submits the proceedings to the superior Magistrate. In such a case again the superior Magistrate h