Judgment 1. This application in revision is directed against the judgement and order dated the 25th of November, 1969, passed by Shri B.N. Pradhan, first Additional Sessions Judge, Patna, modifying the sentence passed against the petitioner for an offence under Sec.379 of the Indian Penal Code and sentencing him to one years rigorous imprisonment. 2. The petitioner was being tried for an offence under Sec.379 of the Indian Penal Code by Shri A.S. Lal, Munsif-Magistrate. Second Class. After examination of witnesses and hearing the parties. Shri A.S. Lal came to the conclusion that the prosecution had proved the charge under Sec.379 of the Indian Penal Code and. accordingly he by his order dated the 24th of November, 1965, convicted him for the offence under that section. Since the Assistant District Prosecutor had prayed that the case be transferred to the court of Sessions Judge for getting the accused sentenced to adequate term of imprisonment, Shri A.S. Lal did not pass the sentence but sent the record to Sessions Judge, Patna, for the needful. 3. The Sessions Judge transferred the case to Shri D.K. Sinha, Munsif-Magistrate, first class, Patna, and he framed charge under Sections 379 and 75 of the Indian Penal Code and afforded opportunity to the prosecution to produce evidence of previous conviction. Despite several adjournments the prosecution did not furnish it. On the 16th of July, 1966, Shri D.K. Sinha delivered judgement and found the accused guilty under Sec.379 of the Indian Penal Code and sentenced him to suffer two years rigorous imprisonment. Then there was an appeal and the appellate court reduced the sentence to one year. 4. Mr. Alakh Sunder Prasad, appearing on behalf of the petitioner, has vehemently argued that the conviction and sentence as recorded, cannot be allowed to stand inasmuch as there has been a violation of the provisions of Sub-Sections (1) and (2) of Sec.349 of the Code of Criminal Procedure (hereinafter referred to as the Code"). Sub-Section (1) inter alia says that whenever a Magistrate of second or third class 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 more severe than that such Magistrate is empowered to inflict, he may record the opinion and submit his proceedings, and forward the accused to the District Magistrate or Sub-divisional Magistrate to whom he is subordinate. Contention of the learned counsel is that regard being had to the provisions of this sub-section, Shri A.S. Lal was authorised only to record his opinion and then to submit the proceedings to the District Magistrate or Sub-divisional Magistrate and not to convict the petitioner, as he has done in the present case. 5. Sub-Section (2) of Sec.349 of the Code lays down that "the Magistrate to whom the proceedings are submitted may, if he thinks fit. examine the parties and recall and examine any witness who has already given, evidence in the case............ and shall pass such judgement, sentence or order in the case as he thinks fit and as is according to law." Contention of the learned counsel is that it is only the District Magistrate or the Sub-divisional Magistrate, to whom the proceedings are submitted, who can exercise the powers conferred by Sub-Section (2). In the instant case, the Sessions Judge, upon whom had been conferred the powers of an Additional District Magistrate, transferred the case to Shri D.K. Sinha who recorded the judgement and passed the sentence end this the Sessions Judge-cum-Additional District Magistrate was not competent to do and, accordingly, the order of conviction and sentence passed by Shri D.K. Sinha is contrary to law. 6. The argument of Mr. Alakh Sunder Prasad that the very submission of proceedings to the Sessions Judge by Shri A.S. Lal, Munsif-Magistrate, is bad because he had already passed the order of conviction cannot be sustained in law. Shri A.S. Lal, Munsif-Magistrate, concluded his judgement by saying that he was of opinion that the prosecution had proved the charge and as such he convicted the accused, But regard being had to the prayer of the Assistant District Prosecutor, he did not pass the sentence and sent the record to the Sessions Judge for needful. R will be noticed that no doubt Shri A.S. Lal passed the order of conviction but, reading the order portion as a whole it ends itself to the construction that Shri A.S. Lal was of opinion that the accused was guilty and that the accused ought to receive a more severe punishment and, accordingly, he recorded the opinion and submitted his proceedings. After all there is no charm in a particular word used and the meaning is to be gathered from the order taken as a whole. Read in this light. After all there is no charm in a particular word used and the meaning is to be gathered from the order taken as a whole. Read in this light. I think the order dated the 24th of November, 1965 recorded by Shri A.S. Lal, cannot be held to be bad as violating the provisions of Sub-Section (1) of Sec.349 of the Code. 7. A similar view was taken by this High Court in Pagla Kahar V/s. Emperor, AIR 1946 Pat 412 : (47 Cri LJ 1016). There also, in expressing his opinion, the second class Magistrate had passed the order of conviction and it was held that the language used was erroneous but it cannot be regarded to mean that he had convicted the accused of the offence since the second class Magistrate had made it quite clear in the order that the entire proceedings were being submitted to the Sub-divisional Magistrate. Similar is the case here. 8. Now as to the submission of the learned counsel in respect of Sub-Section (2) of Sec.349 of the Code. Reading Sub-Sections (1) and (2), I am of opinion that the Magistrate, who can pass the judgement and sentence, must be the District Magistrate or the Sub-divisional Magistrate, to whom the proceedings are submitted, because, the opening words of Sub-Section (2) are - "the Magistrate to whom the proceedings are submitted", and these words do not admit of any other interpretation. 9. The view that I have taken of the matter finds support from the observation made in Emperor V/s. Vinayak Narayan. 16 Cri LJ 273 : (AIR 1914 Bom 217). In State V/s. Nanu Pillai Janardhanan Filial, AIR 1954 Trav. Co 376 : (1954 Cri LJ 1130) also it was held that "A Sub-divisional Magistrate to whom a case is referred under Sec.349 has to consider the case and write a judgement as contemplated in Sec.367. Criminal P.C. The referee Magistrate is under the obligation to hear arguments from the pleaders present and to write a judgement giving his reasons for his order as in an ordinary calendar case tried entirely by him." Now, it is to be investigated whether for violation of the provisions of Sec.349 (2), the order passed is void or not. In this connection, reference may be made to Sec. 530 of the Code. In this connection, reference may be made to Sec. 530 of the Code. The relevant portion of the section says that "If a Magistrate, not being empowered by law in this behalf * * * * * (1) passes a sentence, under Sec.349. on proceedings recorded by another Magistrate; his proceedings shall be void." In the present case. Shri D.K. Sinha was not empowered by law to pass the sentence and as such the proceedings must be held to be void. The same view was expressed by the Bombay High Court in 16 Cri LJ 273 : (AIR 1914 Bom 217) (supra). 10 For the above reasons, the order of conviction and sentence passed by Shri D.K. Sinha and affirmed by the appellate court cannot be sustained in law. 11. Since the offence concerns a theft of Rs. 142 only and the occurrence took place as far back as in July, 1964, I do not propose to order a retrial. 12. In the result the application is allowed.