Balakrishna Ayyar J.
1. The Station House Officer, Pulivendla, filed a charge sheet against seven persons for offences under Sections 147, 148, 324 and 302 I. P. C. and Section 4(1), Madras Prohibition Act. The Stationary Sub-Magistrate, Pulivandla before whom the charge-sheet was laid, held an enquiry under' Chapter 18, Criminal P.C., and, in exercise of the powers conferred on him by Section 209 of that Code, discharged accused 1 to 3 in respect of the offence under Section 302, I. P. C. This is what he said,
"............taking any view of the matter it is impossible for any Judge to find that A-1 to A-3 had a common intention to kill the deceased. So under those circumstances I feel compelled to discharge the accused for the offence of murder or culpable homicide not amounting to murder with which they stand charge-sheeted. They shall however be charged for various other offences the evidence disclosed and shall be tried before me. Proceedings shall therefore be converted into one under Chapter 21 of the Criminal Procedure Code."
The Assistant Public Prosecutor, Grade II, Cuddappah, moved the District Magistrate in revision and he after hearing the Assistant Public Prosecutor and the advocate for the accused passed the following' order:
"In the result the order discharging accused 1 to 3 is reversed and the Sub-Magistrate is directed to commit the accused 1 to 7 to take their trial before the Sessions Court, Cuddappah."
The accused thereupon moved this Court to revise the order of the District Magistrate. In view of the conflict of decisions that exist on the question, Chandra Reddy J. before whom the criminal revision petition came on for hearing, referred the matter to a Division Bench. The Division Bench consisting of Govinda Menon and Basheer Ahmed Sayeed JJ. in their turn have, referred the matter to a Full Bench.
2. The question which we have to answer may be thus formulated:
Where under Section 209(1) Crl. P. C., a Sub-Magistrate finds that. there are not sufficient grounds for committing the accused for trial and directs such persons to be tried before himself or some other Magistrate, can the revisional powers under Section 437 be exercised before the conclusion of the trial before such Magistrate?
3. Before attempting an answer to this question it is as well to examine the familiar sections once more. Section 437, Crl. P.C., so far as is here material, runs as follows:
"When, on examining the record of any case under Section 435 or otherwise, the .........District Magistrate considers that such case is triable exclusively by the Court of Session and that an accused person has been improperly discharged by the inferior Court the ......... District Magistrate may......instead of directing a fresh enquiry order him to be committed for trial 'upon) the matter' of which he has been, in the opinion of the ............ District Magistrate, improperly discharged." Then follow two provisos, the first of which requires the Magistrate to give an opportunity to the accused to show cause why commitment should not be ordered. The second one runs as follows: "If such............Magistrate thinks that the evidence shows that some other offence has been committed by the accused, such ......... Magistrate may direct the inferior court to inquire into such offence."
I would draw attention to the words "upon the matter" which occur in the body of the section. The word "matter" it appears to me is elastic enough to comprehend a single charge or a plurality of charges, a single offence or a plurality of the offences, a part of a case or the whole of a case. The word is also appropriate enough to cover casts where the same act is punishable under two or more sections of the Code. Let us suppose that 'X' is charged with having caused the death of 'Y' by stabbing him with a knife. The offence proved may be punishable under Section 324, 326 or 302, I.P.C. though the offences under Sections 324 and 326 would stand merged in the offence under Section 302, I.P.C. Again if 'X' is. charged with having committed robbery on 'Y' and haying caused grievous hurt to him with a knife while committing the robbery the offence would be punishable under Ss 379, 326 and 397 I.P.C. The word "matter" it seems to me is sufficient to comprehend every one of these aspects of the crime. It will be' noticed that under the second proviso to Section 437, Cr. P. C., the word used is "offence",, a term with a more definite connotation.
4. The next section we have to pay attention to is 209 (1) which provides,
"When the evidence referred to in Section 208 Sub-sections (1) and (3) has been taken" and. has if necessary examined the, accused for the purpose of enabling Him to explain any circumstances appearing in the evidence against him, such magistrate shall, if he finds that there are not sufficient grounds for committing the accused person for trial, record hiss reasons & discharge him unless it appears, to the Magistrate that such person be tried before himself or some other Magistrate, in. which case he shall proceed accordingly."'
When a Magistrate has recorded all the evidence for the prosecution and all the evidence for the defence and has also completed the examination of the accused, he will be in possession substantially of all the material facts. At that stage Section 209, Cr. P. C., empowers him to do one of four things. (1) He can commit the accused to the Court of Session where he will be regularly tried. (2) He can say that no offence triable exclusively by a Court at Session has been made out, but that an offence triable by a First Class Magistrate appears to have been committed and may send up the case to the appropriate First Class Magistrate under Section 346, Cr. P. C. For example if a charge sheet is laid against an accused under Section 302, I.P.C., before a Second Class Magistrate, he may say that only an offence under Section 326 or Section 304-A, I. P. C., has been made out. In that case there will be no justification for committing the case to the court of session. The Magistrate will have no jurisdiction to try these offences himself since he is only a Magistrate, of the Second Class. So he will send the case to a First Class Magistrate. (3) He may take the view that no offence triable exclusively either by the Court of Session or by a First Class Magistrate has been made out, but that only an offence which he himself is competent to try has been committed. Thus even though the prosecution may be for an offence under Section 302, I. P. C., still if he considers that the evidence discloses only an offence under Section 324, I. P.C., he will try it himself.
4. Finally he may take the view that no offence of any kind has been made out, in which case, the accused will be wholly discharged.
5. It will be appreciated that when the Magistrate adopts the fourth course and discharges the accused what he really does is to exonerate him from the whole case and release him from further attendance in court in respect of that case. When he adopts course No. 3 what he does is to exonerate the accused in respect of the charge triable both by the Court of Session and by a First Class. Magistrate; the accused would have been "discharged" in respect of those matters. But only in respect of those matters. When he adopts course No. 2 what he does is to exonerate the accused in respect of the offences triable by the Court of Session; there would be a "discharge" of the accused in respect of that matter but that matter only. That is substantially the position and no amount of argument can alter that. Therefore when a Magistrate discharges an accused in respect of an offence exclusively triable by a Court of Sessions and proceeds to try him himself for an offence within his jurisdiction, on the language of Section 437. Cr. P. C., it will be open to the District Magistrate to direct the committal of the accused for trial "upon the matter of which he has been, in the opinion of the District Magistrate, improperly discharged." It would therefore appear that the order of the District Magistrate which the petitioners now ask this court to set aside was within its competence.
6. Mr. Chinnappa Reddy for the petitioners, however drew attention to the word "unless" occurring in Section 209 (1), Cr. P. C. and argued that when a Magistrate decides to try an accused person himself or send him up for trial before another Magistrate, there cannot be a discharge of the accused within the meaning of the former part of that section; according to him the use of the word "unless" negatives the idea of a discharge. As the next step in this argument he contended that if there is no discharge within the meaning of Section 209 there can be no improper discharge either and therefore it would not be competent to the District Magistrate to set aside the non-existent order of discharge. Mr. Chinnappa Reddy next pointed out that the word "discharge" is used in Sections 209 (1), 209 (2), 213, 253, 259, 333 and 494, Criminal P. C. and said that it is used in the same sense in all these sections and that the word "discharge" means discharge from the whole case. I think a fallacy is involved in this reasoning. The first thing is to bear in mind is that the word "discharge" is not defined in the Code. The next thing to bear in mind is that the word "discharge" is used in the Code in relation to different sets of circumstances or situations. A discharge of the accused in one set of circumstances produces consequences which are not identical with a discharge in another set of circumstances. To say that the word "discharge" is used in the same sense throughout the Code, and that as it produces certain results in certain situations it must produce the same results in all situations -- to say that, is to refuse to recognise the existence of the large variety of situations for which the Code makes provision.
7. All this apart, I fail to see why it should be said that there has been no discharge unless a person is discharged from the whole case. If a person can be acquitted on one charge and convicted on another charge at the same trial equally logically he can be discharged in respect of one offence and be tried in respect of another offence. The word "unless" does not create any difficulty. All that Section 209 (1). Criminal P. C. tells the Magistrate is this: If you find that there are not sufficient grounds to commit the accused for trial you will exonerate him and send him away from Court, but you are not bound to do that if you decide that he should be tried before you or before another magistrate. I do not think that Section 209 (1) says anything more than that.
8. The view taken in this Court has been generally against the contentions of Mr. Chinnappa Reddy. The earliest of the cases is reported in -- 'Krishnareddi v. Subbamma', 24 Mad 136 (A) the headnote of which runs as follows:
"Certain persons were charged before a Magistrate of the first class under Section 379, I.P.C. with the, theft of a promissory note. The prosecution applied for a further charge to be framed under Section 477, I.P.C. but this the Magistrate declined to do, as, in his opinion, there was no direct evidence that the accused had destroyed or secreted the note. After hearing the evidence for the defence, the Magistrate acquitted the accused under Section 258 Criminal P. C. Application was then made to the Sessions Court to call for the records and direct the committal of the accused for trial for an offence under Section 477, I.P.C. The Sessions Court ordered that a further enquiry be made and that the accused be committed for trial. On its being contended, on revision, that the order of the Sessions Court was illegal on the ground that the accused had been acquitted and not discharged: Held: that the order of the Magistrate was in substance an order discharging the accused in respect of an alleged offence under Section 477, I.P.C. and that the Sessions Judge had jurisdiction to make the order sought to be revised."
At page 138 Benson J. stated:
"The complaint against the accused was that he committed an offence punishable under Section 477, I.P.C. Such offence is triable exclusively by the Court of Sessions. The Magistrate could neither acquit nor convict him of such offence. He was bound either to commit him to the Sessions Court or to discharge him. He did not commit him. The only alternative was to discharge him, and that, I take it is what the Magistrate really did do.........The mere omission of the Magistrate to say 'I discharge the accused so far as the offence under Section 477, I.P.C. is concerned' cannot alter the essential character of the Magistrate's proceedings." Mooret J. took a different view of the matter and so the case was placed before a Bench of three Judges and the order of the Court appears on pages 145 and 146. At page 146 the following passage occurs: "From the terms of the Magistrate's order it is clear that he adjudicated upon the question whether there was any evidence against the accused in respect of the major offence. The Magistrate came to the conclusion that there was not, and he declined to charge him with the major offence. It seems to us that this is a "discharge" within the meaning of S. 209."
9. 'Gandi Appa Razu v. Emperor', A.I.R. 1920 Mad 94 (B), is the next case in this Court. The facts there appear to have been as follows. The police laid a charge sheet under Sections 147 and 302, I.P.C. The Magistrate commenced an enquiry under Chapter 18, Criminal P. C. but he declined to frame a charge either under Section 302 or 304, I.P.C. Instead he framed a charge under Section 147, I.P.C. and proceeded to try it himself. At that stage P. W. 1, on whose information the police had laid a charge sheet, moved the District Magistrate under Section 435, Criminal P. C. to direct the committal of the case to Sessions. The District Magistrate sent the petition to the District Superintendent of Police and on receipt of a report from him dismissed the application. Subsequently, the Sub-Magistrate acquitted the accused under Section 258, Criminal P. C. in respect of the offence under Section 147, I. P. C. At this stage, the Sessions Judge was moved and he directed the committal of the accused to the Court of Session for offences under Sections 147 and 304, I. P. C. The accused then came to this Court. A Bench of this Court set aside the order of the Sessions Judge as far as Section 147, I. P .C. was concerned on the ground that there had been an acquittal of the accused of the offence under that section and that Section 403, Criminal P. C. precluded the Sessions Judge from setting aside that acquittal. But, the order of the Sessions Judge was confirmed so far as it related to the charge under Section 304, I.P.C.
Now, in respect of the application that had been made to the District Magistrate, Krishnan J. who delivered the order of the court remarked,
"Now, it will be noticed that at the time the application was made, there was no express order of discharge as to Section 304, I. P.C. nor could an order of discharge be implied under the authority of -- '24 Mad 136 (A), above referred to, as the trial had not come to a close as in that case, and it was still open to the Sub-Magistrate to frame further charges and commit under Section 347, Criminal P. C. if he thought fit to do so. There was thus no order of discharge to revise, and the application cannot be looked upon as one for that purpose."
This passage was cited as lending support to the proposition that so long as proceedings are pending before a Magistrate, it cannot be said in law that there has been a discharge of the accused even though the Magistrate has framed charges only for a minor offence and refused to frame charges in respect of the offences exclusively triable by a Court of Session. On this passage, however, certain observations may be made. The first is that it appears to be. inconsistent with the view expressed a little earlier in the course of the same order. This is the passage I have in mind:
"Though the complaint alleged facts against this accused constituting an offence under Section 302, I.P.C. the Sub-Magistrate disbelieved, the evidence on the point, and did not 'frame any charge under Section 302 or 304, I.P.C. His action amounted in law to an order of discharge on those counts, even though no express order of discharge was recorded by him. See -- '24 Mad 136 (A)'. That being so, it was open to the Sessions Judge under Section 436, Criminal P. C. to act sub motu and set aside the implied discharge........."
The next remark I would make is that in the end this Court confirmed the order of the Sessions Judge so far as it related to the offence under Section 304, I.P.C. thereby necessarily implying that there had been a discharge in that respect of the accused by the Magistrate under Section 209 (1), Criminal P. C.
In the third place, the learned Judge observed that the District Magistrate considered that the application which P. W. 1 made to him was not competent because, as he thought, the police were the proper parties who should have moved him and not P. W. 1.
The learned Judge accepted the principle of implied discharge laid down in -- '24 Mad 136 (A)'. The learned Judge upheld the right of the Sessions Judge to revise such an implied order, if it was improper, in the exercise of his powers under Section 436, Criminal P. C. The learned Judge further held in that case that the prior attempt to move the District Magistrate to interfere in revision was no bar to the exercise of revisional powers by the coordinate authority, the Sessions Judge. The learned Judge pointed out that the District Magistrate himself did not treat it as a proceeding under Section 436, Criminal P. C. "the District Magistrate also seems to have treated it as an incompetent application as he declined jurisdiction under Section 435, Criminal P. C. and refused to call for the records........" That the revisional powers of the Sessions Judge were left untouched by the infructuous proceedings before the District Magistrate was also based by Krishnan J. on the ground
"............that at the time the application was made there was no express order of discharge under Section 304, I.P.C. nor could an order of discharge be implied under the authority of -- '24 Madras 136 (A)', above referred to. as the trial had not come to a close as in that case and it was still open to the Sub-Magistrate to frame further charges and commit under Section 347, Criminal P. C......."
In my opinion, these observations should be construed with reference to the context in which they were made, and they must be confined to the facts of that case. The learned Judge does not appear to have intended to lay down as an inflexible rule of law that an order of discharge of a major offence cannot be implied at all when a charge for a lesser offence is framed, and the further proceedings under that charge before that Magistrate do not terminate. That would have been directly opposed to the principle laid down in -- '24 Mad 136 '(A)', the authority of which Krishnan J. never intended to challenge; "In fact a Magistrate cannot proceed under the latter part of Sub-section (1) of Section 209 until he has discharged the accused under the former part of the sub-section" (at page, 136 -- 'Krishnareddi v Subbamma', 24 Mad 136 (A)). It is the refusal to frame a charge for the major offence and not the subsequent conviction or acquittal of the minor offence, for which a charge was framed, that furnishes the basis for implying an order of discharge of the major offence. Besides, in the case before us there was an express order of discharge before the Magistrate framed charges for the lesser offences.
10. 'In re Lakshmayya'. AIR 1945 Mad 459 (C). was a case in which a charge sheet was filed by the police for an offence under Section 307, I.P.C. The Sub-Magistrate who held the enquiry under Chapter 18, Criminal P. C. decided that no case had been made out under Section 307, I.P.C. He however framed charges under Sections 147, 323 and 325, I.P.C. and converted the case into a calendar case. In revision the Additional District Magistrate directed that the accused be committed to the Court of Session. The accused person then came up in revision to this court and Happell J. who heard the petition dismissed it on the ground that so far as the charge under Section 307, I.P.C. was concerned the accused had been discharged and that therefore the Additional District Magistrate was competent to set aside the order of discharge.
11. The next case of this Court that requires to be examined appears in -- 'In re Jayaraman AIR 1949 Mad 66 (D)'. There, some twelve persons were charged before a First Class Magistrate for offences under Sections 147, 148, 149, 332, 225 and 379, I.P.C, The Magistrate discharged accused 5 to 12 and framed charges against the remaining four accused under various sections of the Code. At that stage the prosecution filed an application before the District Magistrate under Sections 435 and 436, Cr. P. C., praying that the order of discharge be set aside. The learned Additional District Magistrate did so and directed the First Class Magistrate to enquire into the matter afresh. The accused persons then came to this Court. Govinda Menon J. in allowing the petition observed as follows:
"In my opinion, the proper time at which the propriety of a discharge like the one in question here, can be agitated in revision is only after the court of enquiry or trial has finally disposed of the matter. It would not be proper for a Magistrate discharging some accused and framing charges against others to express any definite opinion regarding the credibility or otherwise of the witnesses examined for the prosecution. It may be that a Magistrate may be inclined to believe the evidence as against some of the accused and not believe the same as regards the others. It is very embarrassing for a Magistrate to give reasons at such a stage and therefore the Court of first instance in this case was perfectly justified in not giving any reason for discharging the accused at that stage. Of course he is bound to give his reasons when he finally either acquits or convicts the other accused persons against whom charges have been framed. In a similar case in -- 'Govindaraj v. Emperor', AIR 1938 Mad 396 (E). Venkataramana Rao J. has laid down that it would be competent to a magistrate to discharge some accused and frame charges against others without giving any reasons. Till the charge against the remaining accused is disposed of by a final order the trial court should be deemed to be in seisin of the whole and so long as it is in charge thereof the reasons in regard to the order of discharge can be given at the final stage. There is nothing in the language of Section 253, Cr. P. C., which precludes the court from doing so."
The learned Judge went on to observe:
"Of course the language of the section would plainly indicate that a Magistrate should give his reasons at the time he pronounces the order of discharge and if it is the final order in the case he is bound to give his reasons. The moment he pronounces the final order, he becomes 'functus officio' and he is no longer in charge of the case. But in a case of this nature (where the charges have been framed in the case of some) I am inclined to think that he has not become 'functus officio' and it would be open to him to defer his reasons."
I am in entire agreement with the observations made by the learned Judge. I would therefore hold that the Additional District Magistrate was not justified in setting aside the order of discharge in the present case. As a matter of practice and convenience, it would always be better if the applications by the prosecution for setting aside orders of discharge in cases where charges have been framed against some of the accused along, or against all the accused under some sections alone, were made only after the court finally disposes of the matter."
It will be noticed that Govinda Menon J. did not say that where the Magistrate framed charges under some sections and declined to frame charges under other sections there has been no discharge as regards matters in respect of which the Magistrate had refused to frame charges. Nor do I think that the learned Judge intended to lay down any firm and inflexible rule when he made the observations which I have just quoted. At what stage the revisional authority should be moved and at what stage it should interfere would in a very material degree depend upon the facts peculiar to each case. It may be added that in the instant case the Sub-Magistrate has given full reasons for the view he took. That Govinda Menon J. did not intend to lay down any rule of the kind which Mr. Chinnappa Reddy would read into that decision appears from what he himself said in -- 'Parameswarayya In re,', AIR 1949 Mad 430 (F). He then observed:
"When the Sub-Magistrate framed a charge under Section 337, I.P.C,, and did not frame one under Section 307, I. P. C., his action amounted to a discharge of the accused of an offence under the latter section. In that case it is open to the District Magistrate under Sections 436 and 437 Cr. P. C., either to order a further enquiry or to order commitment to the court of sessions. The fact that the court of first instance has convicted the accused of an offence under Section 337. I.P.C. will not in any way interfere with the order of discharge under Section 307, I.P.C."
12. The last decision of this court is reported in -- 'G. Mathayya in re', (G). That proceeds on the view that where the committing Magistrate holds that no case has been made out against the accused for an offence exclusively triable by the Court of Sessions and framed charges only in respect of offences triable by him there has been a discharge on the graver offence, and, in such, circumstances, the District Magistrate is competent to interfere in revision, set aside the order of discharge and direct the committal of the accused to sessions.
13. It will thus be seen that the decisions of this court have been generally against the contentions of Mr. Chinnappa Reddy. He, however, pressed for our acceptance the view which he said had been taken in -- 'Baijanath Pandey v. Gauri Kanta Mantal', 20 Cal 633 (H). In that case certain persons were prosecuted for dacoity. The Magistrate found that no sessions offence was prima fade established and so framed charges against the accused only for Offences under Sections 380 and 448 I.P.C. Finally, he acquitted the accused on these charges also. Thereafter he gave sanction to prosecute the complainant under Section 211, I.P.C. The complainant moved the sessions Judge in revision.
The Sessions Judge then proceeded to consider the whole case. He considered that a proper enquiry had not been made, that all the evidence available had not been taken and that if that had been done, a sessions case might be established. Therefore, he directed the Magistrate to make further enquiry and proceed in accordance with the result of that enquiry. The accused then went to the Calcutta High Court in revision. The learned Judges observed:
"We have no doubt that the Sessions Judge in this matter has exercised a jurisdiction which was not vested in him by law. If he proceeded to exercise the powers of revision as he seems to have done, he was competent to send for the record for any of the purposes mentioned in Section 435. But he was not competent under Section 436 to direct a fresh enquiry to be made, inasmuch as the accused had not been improperly discharged of an offence triable exclusively by a court of session but had been acquitted of an offence within the Magistrate's jurisdiction in proceedings as already pointed out under Sections 209, 234 and 258. The Sessions Judge, as a matter of fact has exercised a jurisdiction vested in him as an appellate court under Section 423, as if an appeal had been presented to him from the order of acquittal passed by the magistrate."
When we examine this passage carefully it will be seen that it is not an unqualified authority for the proposition that so long as there has not been a discharge from the whole of the case a Sessions Judge or a District Magistrate cannot interfere in revision even though a committing Magistrate improperly discharges an accused of offences triable exclusively by a Court of Session. It will be noticed that the learned Judges took the view that the accused had not been improperly discharged. If the accused had not been improperly discharged, obviously neither the Sessions Judge, nor the District Magistrate could interfere in revision. In so far as it can be treated as an authority for the view which Mr. Chinnappa Reddy tried to persuade us to accept, it was dissented from in -- '24 Mad 136 (A)', and, speaking for myself, I prefer the view that has been taken by this Court.
13. The last of the decisions which Mr. Chinnappa Reddi cited and which needs examination is reported in -- 'Nahar Singh v. The State', (I). The facts there were these: The police laid a
charge sheet against the accused under Section 304, I.P.C. The Magistrate commenced proceedings under Chapter 18, Cr. P. C. He recorded the evidence for the prosecution and the defence and framed a charge under Section 304-A, I.P.C. He did not however pass an order explaining why he thought that the offence did not fall under Section 304 but only under Section 304-A. I.P.C. A son of the deceased moved the Sessions Judge in revision, who took the view that the omission of the Magistrate to farme a charge under Section 304, I.P.C, amounted to a discharge of the accused in respect of that offence. He therefore directed the committal of the accused. The accused then went to the High Court, which set aside the order of the Sessions Judge on the ground that there had been no discharge by the Magistrate of the accused in respect of the offence under Section 304, I.P.C.
14. I have read with great care the judgments of all the three learned Judges, but I must say that I am not persuaded by their reasoning. One is tempted to ask: if there was no discharge of the accused in respect of the offence under Section 304, I.P.C., what happened to that charge or accusation? One answer suggested by Desai J. is that an acquittal would be implied. But surely this is hardly a satisfactory answer since the Magistrate enquiring into an offence exclusively triable by a court of session has no power either to convict or to acquit. How can there be an acquittal by a Court which is not competent to pass such an order? How again can an acquittal be implied where a discharge cannot be implied, since acquittal and discharge both imply an exoneration of the accused, one main difference between the two forms of exoneration being that in the case of an acquittal the accused is entitled to the protection conferred by Section 403, Cr. P. C.? This is not by any means the end of the difficulties which the view taken in the Allahabad High Court would raise. If a committing Magistrate improperly refuses to frame a charge in respect of an offence exclusively triable by a court of Session and tries the accused for a minor offence, and finally disposes of those offences how can his mistake be put right? Desai J. suggested that the complainant can file another complaint, but ordinarily that complaint would have to be presented to the same Magistrate, and it can hardly be expected that he would take a different view merely because a new copy of the old complaint is handed over to him. Desai J. also suggested that a commitment can be ordered by the High Court; but consistently with the view taken in that decision how this can be done? As I explained before, if a discharge cannot be implied an acquittal cannot be implied either, and, if there has been neither a discharge nor an acquittal, what order can the High Court set aside?
Desai J. finally suggested that the Government can file an appeal against the acquittal, but, as already pointed out, the assumption that there has been an acquittal cannot be justified at all.
Desai J. who delivered the leading judgment in the case, remarked:
"If he (the Magistrate) retains the power of commitment, it would be difficult to say that the accused has been discharged."
With all respect, I regret my inability to follow this. Section 347, Cr. P. C., merely gives the Magistrate a further opportunity to reconsider his decision It does not imply that a decision has not already been arrived at or given. Besides the circumstances that the Code gives the. Committing Magistrate an opportunity to re-examine his earlier view, does not in any way take away the revisional powers either of the District Magistrate or of the Sessions Judge.
With the views expressed by Desai J.: "that so long as some charge has been framed to cover the allegation there is no discharge" (page 236, col. 2); that "the discharge contemplated under the Code is discharge from, the case without regard to the offence" (page 238, Col. 1) and that, "Even if the Magistrate writes out a detailed order giving reasons for framing a charge for minor offence and for not framing a charge for the major offence and even if he says that he discharges the accused of the major offence, there is no discharge." I regret, with all respect, my inability to agree.
15. I prefer the view that has been well established in this Court and would answer the question raised in the affirmative.
16. I agree with Balakrishna Aiyar, J.
Chandra Reddy, J.
17. I agree with the order proposed by my learned brother Balakrishna Ayyar J. I shall however give my reasons in support of the conclusion.
18. The question for consideration before the Full Bench is:
"Where under Section 209(1) Cr. P. C., a magistrate finds that there are not sufficient grounds for committing the accused person for trial and directs that such person should be tried before himself or some other magistrate can the revisional powers under Section 437, Cr. P. C., be exercised before the conclusion of the trial before such magistrate?"
19. The circumstances that led up to this question are the following: The petitioners were charge-sheeted before the Stationary Sub-Magistrate of Pulivendla for offences under Sections 147, 148, 324 and 302 read with Section 34, I.P.C. After hearing the prosecution case, the Stationary Sub-Magistrate came to the conclusion that no prima facie case was made out against the petitioners under Section 302 read with Section 34, I.P.C., and that the evidence disclosed only lesser offences against them which were not exclusively triable by the Sessions Judge. So he framed charges against the petitioners under Sections 147, 148 and 324 and proceeded with the trial of the case. Treating this as an order of discharge as regards the graver offence under Section 302 read with Section 34, I.P.C. the prosecution moved the District Magistrate to revise the order of the Stationary Sub-Magistrate. The District Magistrate set aside this order of the Sub-Magistrate and directed that the petitioners should be committed to take their trial before the Sessions court. Against that order the present revision case has been filed.
20. In support of this petition, it was contended by Mr. Chinnappa Reddy that Section 437, Cr. P. C., does not confer jurisdiction on the District Magistrate to interfere with an order like the present one as there was no discharge in law within the meaning of that section and that in any event so long as the proceedings before the Sub-Magistrate are not terminated, it could not be said that there has been a discharge of the accused of the graver offence as it is always open to him under Section 347, Cr.P.C., to commit the accused to sessions at a later stage. At the outset it must be mentioned that it is under Section 209, Cr. P. C. that the order that has given rise to this petition was passed by the Stationary Sub-Magistrate and it is the provisions of this section that form the subject-matter of this enquiry.
21. The learned counsel urges that three views may possibly be taken of Section 209, Cr. P.C. (1) The order amounts to a discharge and so it is competent for the District Magistrate or the Sessions Judge to interfere under Section 437, Cr. P. C. (2) If the Magistrate decides to proceed with the trial of the case before himself there can be no discharge which can be revised under Section 437, Cr. P. C. (3) The discharge of graver offences springs into existence when the case ends finally either in a conviction or an acquittal in respect of lesser offences before the Magistrate and it is only on the termination of these proceedings that the revisional jurisdiction under Section 437, Cr. P. C. could be invoked.
According to the learned counsel the first view is opposed to the plain meaning of the words of Section 209 and to the signification of the word "discharge" which occurs in other parts of the Code as well as in some of the decided cases. He invited our attention to Section 213, 253, 259 and 333 where the word "discharge" is used and argues that since in those sections that expression is meant a total dropping of all the proceedings, the same meaning must be attributed to the word "discharge" in Section 209, Cr. P. C. also.
22. Before I meet this argument, I will refer to the terms of Section
209. Section 209, Cr. P. C. runs thus:
"209(1): When the evidence referred to in Section 208, Sub-sections (1), (3) has been taken and he has (if necessary) examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him, such Magistrate shall, if he finds that there are not sufficient grounds for committing the accused person for trial, record his reasons and discharge him, unless it appears to the Magistrate that such person should be tried before himself or some other Magistrate, in which case he shall proceed accordingly.
(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case, if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless."
Can it be predicated that the word "discharge" is used as synonymous with the total dropping of all proceedings in all the sections referred to above? On an examination of all the material sections, it appears to my mind that the expression is not used in the same sense in all the sections wherever that expression occurs. For instance Section 494 of the Code says: "Any Public Prosecutor may,' with the consent of the court, in cases tried by jury before the return of the verdict, and in other cases before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and upon such withdrawal, (a) if it is made before a charge has been framed the accused shall be discharged in respect of such offence or offences; (b) if it is made after a charge has been framed, and when under this Code no charge is required, he shall be acquitted in respect of such offence or offences." It is manifest from this section that it does not contemplate the total dropping of all the proceedings It is open to a Public Prosecutor with the leave of the Court to withdraw a charge in respect of one offence and proceed with another offence against the same individual. Therefore, I am unable to accede to the argument based on a comparison of the relevant provisions of the Code.
23. Mr. Chinnappa Reddy laid particular emphases on the expression "unless it appears to the Magistrate" in Section 209, Cr. P. C. and urges that the Legislature in so expressing itself intended to exclude the possibility of a discharge when the Magistrate frames charges for a lesser offence and proceeds himself with the trial of the case. It was also maintained by him that the decision of the Magistrate to frame charges for a lesser offence and proceed with the trial of the case, himself would not amount to a discharge of the graver offence, in view of the provisions of Section 347, Criminal P. C. Section 347, Criminal P. C. provides :
"(1) If in any inquiry before a Magistrate or in any trial before a Magistrate before signing judgment, it appears to him at any stage of the proceedings that the case is one which ought to be tried by the Court of Session or High Court, and if he is empowered to commit for trial, he shall commit the accused under the provisions hereinbefore contained."
The learned counsel poses the question as to how a Magistrate could revise his own order and commit the accused.
24. For these arguments reliance was placed on the Full Bench ruling of the Allahabad High Court in -- ' (I)'. There the
learned Judges laid down that when a person is accused of a major offence before a Magistrate and the latter chooses to frame a charge for a minor offence and proceeds to try the offender himself it does not amount to a discharge because the case is proceeding against him on the same facts and consequently it is not competent for the District Magistrate or the, Sessions Judge to exercise revisional jurisdiction under Section 437, Criminal P. C. The 'ratio-decidendi' of this decision is: (a) When an accused is convicted, or acquitted of an offence he must be deemed to have been acquitted of all the other offences which could have been made out from the evidence on record; and as a person cannot be said to be both discharged and acquitted it follows that there was no discharge at all in such a case, (b) If the District Magistrate or the Sessions Judge could order an enquiry into the charge for the graver offence, there would be two trials and the Legislature could not have intended that the accused should be subjected to two trials. (c) If the Magistrate retains the power for commitment it would be difficult to say that the accused has been discharged and besides it is open to the Magistrate to commit the accused at a later stage under Section 347, Cr. P. C. (d) A comparison of the various sections in which the word "discharge" is used indicates that it was only a complete dropping of all the proceedings that was contemplated by that expression whenever it is used. The learned counsel for the petitioners largely based his arguments on the reasoning of the Full Bench.
In support of the view that the decision not to commit the accused to the sessions for trial for graver offence does not result in discharge of that offence but amounts to an acquittal, reliance was also placed by the learned Judges in that last mentioned case on a ruling of the Privy Council in -- 'Kishan Singh v. Emperor', AIR 1928 PC 254 (J). With great respect to the learned Judges, I must observe that this ruling has no bearing at all on the point. All that was laid down by their Lordships of the Judicial Committee was that the High Court should not interfere in revision with an order of acquittal when there was appeal competent against such an order. I fail to see how there can be said to be an acquittal of an offence in respect of which there has been no charge, no trial and above all when the Magistrate before whom the accusation is made has no jurisdiction either to acquit or convict. In this connection) I may refer to the opinion expressed in the leading judgment in --' (I)', that the prosecution is not
precluded from filing a 'charge sheet against the accused for the graver offence on the same set of facts as Section 403, Cr. P. C., is not a bar to such a course. It appears to me that these two opinions are irreconcilable. The learned Judges say that there could not be both discharge or acquittal in respect of an offence. It means that there can be either an acquittal or a discharge. Hence if there is no acquittal there must be a discharge even if it is not so expressed. If the basic assumption that there is an acquittal in such a situation goes, it follows there is a discharge.
As regards the difficulty of the two trials envisaged in the judgment it looks to me that it is not a substantial one. It is not necessary to proceed with two trials simultaneously. The revising authority can stay the proceedings be fore the Magistrate and if as a result of the revision petition there is a direction for the committal of the accused person to take his trial before the Sessions court for graver offences, the Magistrate can commit the accused, to the sessions for that offence also.
With reference to the argument based on Section 347, Cr. P. C., that section confers a general power on the Magistrate to commit an accused person at a later stage not only in the case of an accusation of an offence exclusively triable by the Sessions Court but in a case where the charge sheet laid is for an offence triable by a Magistrate as well. Merely because an enabling provision is enacted in Section 347, Cr. P. C. that does not take away the power of a superior Magistrate or a Sessions Judge to correct any error committed by the Magistrate. It is also my opinion that the power conferred upon a Magistrate under Section 347, Cr. P. C. is not in any way inconsistent with the view that the decision to frame a charge for lesser offence is tantamount to an implied discharge of a graver offence.
25. I may remark that the view taken in -- ' (F. B.) (I), is opposed to the uniform course of decisions of our court on this subject the leading authority being --'24 Mad 136 (A)'. The reasons given by the-learned Judges for dissenting from -- '24 Mad 136 (A)', do not commend themselves to me. Further, a view contrary to that expressed in -- ' (F. B.) (I)', was taken at least in two cases in that court in -- 'Sheo Narain v. Radhamohan'. AIR 1919 All 66 (K)', which following -- '24 Mad 136 (A)', to which reference will be made immediately held that the order of the Magistrate framing a charge for a lesser offence amounts to a discharge of the accused for more serious offence. To the same effect is the decision of Sapru J in -- 'Amir Hasan v. Rex', AIR 1948 All 405 (L). In this case also reference is made to -- '24 Mad 136 (A)'.
26. '24 Mad 136 (A)' came up before a special Bench composed of White C. J., Subramaniam and Davies JJ. on a difference of opinion between Benson and Moore JJ., on the interpretation of Section 209, Cr. P. C. There three persons were charged before a Magistrate for theft of a promissory note executed by the predecessor-in-interest of one of them in favour of the predecessor-in-interest of the complainant. The prosecution wanted that a charge should be framed under Section 477, I.P.C. But the Magistrate declined to do so on the ground that there was no evidence to justify such a charge. Ultimately he acquitted them. Thereupon the Sessions Judge was moved to direct the Magistrate to commit the accused for an offence of secreting and destroying the promissory note. The Sessions Judge allowed the revision petition and directed the commitment under Section 477, I.P.C. The question that was raised before the Bench was that the Sessions Judge had no jurisdiction to order the committal for trial in that there was no discharge as contemplated in Section 209, Cr. P. C. Benson J. negatived this contention and dismissed the petition on the ground that the Sessions Judge had jurisdiction to make the order, while Moore J. thought that there was no discharge by the Magistrate within the meaning of Section 209, Cr. P. C. and it was therefore not competent to the Sessions Judge to exercise powers under Section 437, Cr. P. C. The Special Bench, agreed with the view taken by Benson J. The position was summed up by the learned Judge thus:
"If, in the opinion of the Magistrate, there is no evidence to warrant a charge for an offence exclusively triable by a Court of Session, he may 'discharge' the accused in respect of the alleged offences & having done so, may proceed as regards the minor offence or offences under Chapter 21 or other appropriate chapter. In fact, a Magistrate cannot proceed to act under the latter part of Sub-section 1 of Section 209 until he has 'discharged' the accused under the former part of the sub-section."
In my opinion this embodies the correct exposition of law enacted in Section 209. In this case the Bench decision in -- 'Queen-Empress v. Hanumantha Reddi', 23 Mad 225 (M), which merely followed -- '20 Cal 633 (H)', was dissented from. With respect to the learned Judges who decided last mentioned two cases. I must observe they are based on misconception of the effect of the omission to frame a charge for a graver offence under Section 209, Cr. P. C. as they thought that a decision of the Magistrate not to commit the accused person to trial and to frame charges for minor offences triable by him amounted to an acquittal of the major offence.
27. The ruling in -- '24 Mad 136 (A)', was followed in -- 'AIR 1920 Mad 94 (B)'. Krishnan J. who delivered the judgment on behalf of the Bench remarked that when a Magistrate disbelieved the evidence of the prosecution and did- not frame a charge for the major offence that amounted in law to an order of discharge on those counts despite the omission of the Magistrate to make express order of discharge. I may have to refer to another portion of the judgment in this case which has given rise to the contention that the revisional jurisdiction could be invoked only after the termination of the proceedings before a Magistrate, at another place.
28. In -- 'Ganga Datta v. Emperor', AIR 1936 Nag 87 (N). Gruer J. of Nagpur High Court following the ruling in -- '24 Mad 136 (A)', laid down that framing of charges on a minor section is equivalent to the discharge of the accused on major counts. A Bench of the Lahore High Court also accepted the principle laid down in -- '24 Mad 136 (A)'.
'24 Mad 136 (A)' was followed by Happett J. in -- 'AIR 1945 Mad 459 (C)', by Govinda Menon J, in -- 'AIR 1949 Mad 430 (F)', and by Ramaswami J. in -- ' (G)'. There are some other
decisions bearing on this topic to which I need not refer. Suffice it to say that the weight of authority is in favour of the view we have taken in this case.
29. Mr. Cbinnappa Reddi contends that the ruling in -- '24 Mad 136 (A)', requires reconsideration as the learned Judges failed to consider the meaning of the expression "discharge" which occurs in various sections of the Code and also the meaning of the word "unless" in Section 209. As regards the first part of it, I have already stated that this term has not got the same connotation as used in different sections of the Code. With reference to the other argument, it looks to me that the clause "unless it appears ..............." in the context only means "& then proceed to try him for other offences."
30. In this context, the last part of Section 437 (1) "to be committed for trial upon the matter of which he had been, in the opinion of the ........improperly discharged" may be onsidered. In my opinion the expression "matter" is wide enough to include any offence and is not used in the specific sense to mean the allegations constituting the accusation. For these reasons I hold that the refusal of the Magistrate to frame charges for the more serious offence is tantamount to an implied discharge and the failure of the Magistrate to pass an express order of discharge and to record reasons therefor does not in any way affect the matter.
31. The next point is whether the jurisdiction of the Magistrate cannot be invoked till the proceedings before the Magistrate come to an end. As already pointed out, the basis of this argument is mainly the opinion expressed by the Bench in -- 'AIR 1920 Mad 94 (B)'. The relevant passage in that decision is at page 95:
"Now it will be notified that at the time the application was made there was no express order of discharge as to Section 304 I.P.C. nor could an order of discharge be implied under the authority of --'24 Mad 136 (A)', above referred to as the trial had not come to a close, as in that case, & it was still open to the Sub-Magistrate to frame further charges and commit under Section 347, Cr. P. C., if he thought fit to do so."
32. In my opinion the fact that the Magistrate is empowered to order commitment under Section 347, Cr. P. C. at a later stage has really no material bearing on this question, and I have already adverted to this aspect of the matter. I fail to see any rational basis for this view. If really there is an implied order of discharge it does not stand to reason that the prosecution has to wait till the termination of the proceedings before the Magistrate. The view taken by the learned Judges implies that the order of discharge springs into existence only after the proceedings before the Magistrate end either in an acquittal or on a conviction. It looks to me that the very basis of the judgment in that case that there is an implied discharge in the circumstances stated there is opposed to the notion that the order of discharge comes into effect only at the end of the proceedings before the Magistrate. This theory can be supported only on the assumption that it is only the conviction or acquittal of the minor offence by a Magistrate that would give rise to an order of discharge. It that basis is not accepted, there can be no impediment in the way of the exercise of revisional powers under Section 437, Cr, P. C. Mr. Chinnappa Reddy next called in aid some observations of Govinda Menon J. in -- 'AIR 1949 Madras 66 at p. 67 (D)'.
"As a matter of practice and convenience it would always be better if the applications by the prosecution for setting aside orders of discharge in cases where charges have been framed against some of the accused alone or against all the accused under some sections alone, were made only after the court finally disposes of the matter."
But I do not think the learned Judge intended to lay down any invariable rule. These remarks should be understood with reference to the circumstances of the case.
33. It follows that it is competent for the District Magistrate or the Sessions Judge to revise the order of discharge without waiting for the termination of the proceedings before the Magistrate. That, in my opinion, is the only logical result of the view that the decision to proceed under the latter part of Section 209(1) Cr. P. C. amounts to an order of discharge. Thus the question is answered in the affirmative.