1. In this case the applicant has been committed to the Court of Session by the District Magistrate of Nasik acting under the powers conferred upon him by Section 436 of the Code of Criminal Procedure. The applicant had previously been discharged by a Magistrate.
2. On the merits of these orders I shall not say a word, I mean on the merits in so far as they are affected by the evidence in the case and considerations arising purely out of the evidence. It is, however, contended that the District Magistrate was without authority to make this order, because the case against the applicant is primarily one of criminal misappropriation or breach of trust, and such a case is not triable exclusively by the Court of Session. However, the accusation against him is that this criminal misappropriation was enabled to be done of was concealed or facilitated by making false entries in accounts. That is, the falsification of accounts was not only a substantial part of the affair, but so substantial and so necessary that the misappropriation could not have been effected in the way it was done without this falsification. Therefore, I am quite satisfied that the case was one in which the District Magistrate had jurisdiction under Section 436 that is to say, it was a case in Heaton, J. which it was open to him to consider that the case was triable exclusively by the Court of Session. But it is contended, even if that be so, yet although the District Magistrate might have authority to commit on a charge under Section 477 A of the Indian-Penal Code, he could still be without authority to add a charge under Section 408. Personally I hold that provided the commitment under Section 477 A is a proper commitment, it opens up the whole case and the District Magistrate can, if so minded, add a charge under Section 408, if the charge under Section 408 is so intimately connected with the charge under Section 477 A as to form part of the same transaction. If, however, the charge as framed is liable to other criticisms that is a matter which can be brought to the consideration of the Sessions Judge who will have trial of the case, for on him rests the ultimate responsibility of settling the charge on which this applicant will come to trial.
3. I am not at all unmindful that we have to be very cautious in dealing with Section 436 so as not to allow the power to commit to be used where the offence triable exclusively by the Court of Session is not the substantial thing or not one of the really substantial things against an accused person. But here, as I have said, I am quite satisfied that the charge of falsification of accounts is one of the substantial things against the accused.
4. Therefore I should discharge the rule.
5. I agree that the rule should be discharged.
6. In this case the District Magistrate has come to the conclusion that the accused has been improperly discharged by the enquiring Magistrate and under the circumstances of this case he considers that the case is exclusively triable by the Court of Session.
7. Both the conditions required by Section 436. being satisfied, I am of opinion that it was open to him to make an order of commitment under the section. I do not desire to say anything on the merits of the case in spite of the fact that an attempt has been made in the course of the arguments to show that the order of discharge by the trial Magistrate was proper, particularly as the whole evidence will have to be considered at the trial by the Sessions Court. I confine myself to the consideration of the legal argument urged that the order was not justified by the terms of the section.