1. This is a revision against an order passed by the Sub-Divisional Magistrate of Sankari, on a memo, filed by the petitioner who is an accused in P.R.C. No. 4 of 1956. The petitioner is a Sub-Inspector of Police. He has filed a charge-sheet which is the subject of enquiry in P.R.C. No. 3 of 1956 on the file of the same Sub-Divisional Magistrate. The complaint against the petitioner is a private complaint by the accused in P.R.C. No. 3 of 1956. Both the complaints were taken on file by the District Magistrate and though there was an allegation of an offence under Section 307, Indian Penal Code, against the accused in P.R.C. No. 3 of 1956 the District Magistrate was of the opinion that it amounted only to an offence under Section 332, Indian Penal Code and, therefore, triable by the Sub-Divisional Magistrate. The Sessions Judge transferred both the cases to the file o this Sub-Divisional Magistrate. As soon as the cases were received by the Sub-Divisional Magistrate, he appears to have converted both the cases as P.R. Cases, treating the Police charge-sheet as P.R.C. No. 3 and the complaint by the accused in P.R.C. No. 3 against the petitioner as P.R.C. No. 4. Why he converted these cases into P.R. Cases when he was issuing summons only for an offence under Section 323, Indian Penal Code, is not at all clear. The Magistrate, on a perusal of the complaint, has to form an opinion about the offence disclosed on the allegations in the complaint, and, if he thinks that the offence alleged to have been committed is a grave one, certainly he is bound to treat the case as a P.R. Case and issue summons to the accused for such grave offence. In this case the summons has been issued only for an offence under Section 323, Indian Penal Code. Normally, this should have been tried only as C.C. Nevertheless the Magistrate converted it into a P.R. Case even before the issue of summons. After the evidence had been taken in both the cases, the Assistant Public Prosecutor who appears for the State in the police charge-cheet case filed a petition asking the Court to convert that case into a Calendar Case on the ground that in respect of the offence under Section 307, Indian Penal Code said to have been disclosed by the allegations in the charge-sheet the accused should be considered to have been impliedly discharged as the case was taken on file by the District Magistrate only for an offence under Section 332, Indian Penal Code. After the Magistrate passed an order in that petition, the petitioner herein filed this petition to convert the present case also into a Calender Case and he has pointed out that the present case is triable as a Calender Case and is now heard as a P.R.Case presumably because it is counter to P.R.C. No. 3 of 1956. The petitioner also wanted that the counter-case must be treated as Calender Case in view of the fact that the District Magistrate has passed orders converting the case into a Calendar Case and he urged it as an argument that the order of the District Magistrate means an implied discharge of the offence under Section 307, Indian Penal Code. In fact, the Assistant Public Prosecutor in the other case on behalf of the prosecution, and the petitioner in this case who is the accused, both wanted that both the cases should be tried as a Calendar Case. In dismissing the petition filed in this case, the learned Magistrate, in paragraph 4, purports to follow the observations of Ramaswami, J., in Thotta Ramakrishnayya v. State (1953) 2 M.L.J. 425. The law regarding case and counter is laid down in the decision of the Full Bench of this Court in Mounaguruswami In re (1932) 64 M.L.J. 150 : I.L.R 56 Mad. 59 (F.B.).
2. This decision has been variously interpreted, and the one interpretation given to it is that referred to by the Sub-Divisional Magistrate in Thota Krishnayya v. State (1953) 2 M.L.J. 425. Another interpretation was given by Lakshmana Rao, J., in Oonna Mudali v. Emperor 1940 M.W.N. 70. In Chinnaswami Nadar v. Emperor 1933 M.W.N. 98 and in Oonna Mudali v. Emperor 1940 M.W.N. 70 both the learned Judges in substance followed the principles laid down in the Full Bench decision of this Court in Mounaguruswami, In re (1932) 64 M.L.J. 150 : I.L.R. 56 Mad. 159. (F.B.). In considering as to whether a case is counter to another and whether both should be committed to the Sessions, it is the duty of the Magistrate to consider first and foremost the decision of the Full Bench of this Court in Mounaguruswami In re. (1932) 64 M.L.J. 150 : I.L.R. 56 Mad. 159. (F.B.) Whatever might be the reason given by the Magistrate in dismissing the petition filed by the petitioner to convert the case into a Calendar Case, the effect of it is to continue this case as a P.R. Case. The Magistrate before passing final orders in this case, that is to say, either before committing or discharging the accused, or converting the case into a Calendar Case, will do well to consider the decision in Mounaguruswami In re (1932) 64 M.L.J. 150 : I.L.R. 56 Mad. 159. (F.B.). As pointed out by Mr. Raghunathan, who appears for the petitioner, if the Magistrate has issued summons only for an offence under Section 323, Indian Penal Code he should not have treated the case as a P.R. Case from the beginning itself, the offence under Section 323, Indian Penal Code being triable by a Magistrate. But having issued the summons for the offence under Section 323, Indian Penal Code treating the case as a P.R. Case, it is still open to him to consider as to whether this case should be committed to the Sessions or not in the light of the ruling given by the Full Bench of this Court in Mounaguruswawi In re4. With these observations the order of the lower Court dismissing this petition filed by the petitioner is set aside and the lower Court will consider afresh, after recording evidence, as to whether it is necessary to commit the accused to Sessions or not or convert it into Calendar Case or not in the light of the observations made above.