C. Jagannadhacharyulu, J.C.
1. This is a reference made by the Additional Sessions Judge, Tripura, under Section 438 Cr, P, C to set aside the order of discharge of two accused persons namely Barindra Paul and Bidhu Bhusan Paul, passed by the Magistrate of Dharmanagar in Case No. C. R. 219 of 1964 on his file and to direct him to frame a charge for the offence of theft under Section 379 I P. C.
2. The case of the prosecution is that, on 19-7-64, when the complainant was proceeding towards Dharmanagar market with a basket containing 20 eggs, an umbrella and six rupees in his pocket, he was called to the house of the accused Barindra Paul, that with regard to the price of the eggs there was a dispute between Barindra Paul and the complainant, and that at that time Biclhu Bhusan Paul snatched away the eggs and handed over the same to Monorama Paul, who is the wife of Barindra Paul. The prosecution further alleged that Barindra Paul and Bidhu Bhusan Paul also snatched away the umbrella of the complainant and also six rupees from his pocket.
3. The trial Court examined 5 witnesses and held that there is no prima facie case against the two accused in question. The complainant carried the matter in revision to the Sessions Court under Section 435 Cr. P, C. to set aside the order of discharge of the two accused Barindra Paul and Bidhu Bhusan Paul. The learned Sessions Judge made this reference to set aside the order of discharge and to direct the Magistrate to frame a charge against the two accused persons. But, the complainant did not choose to appear in this Court and support the reference.
4. Evidently, the learned Sessions Judge has ignored the provisions of Section 436 Cr, P, C. Under that section he himself is competent to set aside the order of discharge and to direct the trial Court to frame charge against the two accused persons. He need not have referred the case to this Court under Section 438 Cr. P.C. as rightly urged by the learned Counsel for the respondents. This reference is incompetent and is liable to be rejected. In such an event, the order of discharge passed by the Magistrate remains. It is for the parties, if so advised, to take proper steps according to law to get the order of discharge set aside.
5. In the result, the reference is rejected.