Code of Criminal Procedure, 1898 — Section 349: Procedure when Magistrate cannot pass sentence sufficiently severe

349. Procedure when Magistrate cannot pass sentence sufficiently severe. __ (1) Whenever a Magistrate of the second or third class, having jurisdiction, 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 that he ought to be required to execute a bond under section 106, he may record the opinion and submit his proceedings, and forward the accused, 7[to a Magistrate of the first class specially empowered in this behalf by the Provincial Government] to whom he is subordinate. 8 [(1A) 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 7[Magistrate empowered under sub-section (1)].]

(2)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 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: Provided that he shall not inflict a punishment more severe than he is empowered to inflict under sections 32 and 33. Provided that

(a)Where the conviction was held before a Sessions Judge, the High Court; and

(b)where the conviction was held before a Magistrate, the High Court or the Court of Session, may, whether there be an appeal or not, set aside any conviction passed on evidence not wholly recorded by the Sessions Judge or Magistrate before whom the conviction was held, if such Court is of opinion that the accused has been materially prejudiced thereby, and may order a new inquiry or trial.]

(2)Nothing in this section applies to cases in which proceedings have been stayed under section 346 1[or in which proceedings have been submitted to a 2[Magistrate specially empowered] under section 349]. 1 [(3) When a case is transferred under the provisions of this Code from one Magistrate to another, the former shall be deemed to cease to exercise jurisdiction therein and to be succeeded by the latter within the meaning of sub-section (1).] 3 [350A. Changes in constitution of Benches. No order or judgment of a Bench of Magistrates shall be invalid by reason only of a change having occurred in the constitution of the Bench in any case in which the Bench by which such order or judgment is passed is duly constituted under sections 15 and 16, and the Magistrates constituting the same have been present on the Bench throughout the proceedings.]