M.S. Nesargi, J.
1. The State has filed this petition against the order of discharge, dated 30-8-1974, passed by the Judicial Magistrate, First Class, Muddebihal, in Criminal Case No. 590 of 1974, discharging the respondents of the offence under Section 302 read with Section 34 of the Indian Penal Code.
2. The prosecution case is that at about 8-00 p.m. on 24-4-1974 near the village gate of Devoor, the respondents pelted stones against the deceased Salamanca and caused injuries to him; and that Sayabanna developed tetanus on 2-5-1974 and further that he expired on 3-5-1974 in the T. D. B. Dispensary at Muddebihal.
3. The police investigated into the case on receipt of the first information report on 3-5-1974 and filed charge-sheet. On the filing of the charge-sheet, the Magistrate took cognizance of the offences and thereafter enlarged the respondents on bail as requested by them, By the order in question, the Magistrate has discharged the respondents of the offence under Section 302 read with Section 34 of the Indian Penal Code, on the reasoning that in view of the words 'it appears' occurring in Section 209 of the Code of Criminal Procedure, a Magistrate has power to find out whether in fact an offence of murder appears to have been made out or not, and in case he finds in the negative, he has power to discharge the accused.
4. It is for a Magistrate to decide, after scrutinising the material produced before him, in regard to what offences he should take cognizance. In this case, the Magistrate took cognizance, also of the offence under Section 302 read with Section 34 of the Indian Penal Code. Section 209 of the Code of Criminal Procedure laws down that when in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall commit the case to the Court of Session. After the Magistrate took cognizance of the offence under Section 302 read with Section 34, I. P.C. there was no scope for interpreting the words 'it appears' occurring in Section 209 of Criminal P.C. Moreover, Section 209 does not at all empower a Magistrate to pass an order of discharge. That power is vested in the Sessions Judge under Section 227 of the Code of Criminal Procedure. These reasons show that the order in question cannot be sustained.
5. For the foregoing reasons, this petition is allowed to and the order dated 30-8-1974, passed by. the Magistrate, is set aside.