(1) This is a petition is revision against the order of the Sub-Divisional Magistrate, Cuddappah, who, while acting under S. 346(2), Criminal P. C., decided to proceed with the case as a preliminary register case. The circumstances giving rise to this case are these :
(2) A charge sheet was filed before the Staionary Sub-Magistrate, Pulivendla, against 14 persons under Ss. 147, 148, 324, 326 and 307, Penal Code, read with S. 149, Penal Code, and S. 19(f). Arms Act. The accused are said to have formed themselves into an unlawful assembly with the common object of attacking and killing the members of the opposite side, some of them armed with unlicensed guns and others with stones, and in prosecution of this common object, caused some pallet injuries to some members of the prosecution party.
The Magistrate thought that the material on record did not warrant a trial for an offence under S. 307, Penal Code, that the evidence pointed only to offences some of which are of a first class nature and that therefore they are triable only by a Magistrate of the first class. In that view he discharged the accused for an offence under S. 307, Penal Code, and submitted to records under S. 346(1), Criminal P. C., to the Sub-Divisional Magistrate for trial of ..... offences. The Sub-Divisional Magistrate disagreed with the view of the Sub-Magistrate as to the effect of the evidence, and came to the conclusion that the facts spoken to by the prosecution disclosed an offence under S. 307, Penal Code. He therefore began to proceed with the case as a preliminary register case for an offence under S. 307, Penal Code.
(3) In this revision case, the procedure adopted by the Sub-Divisional Magistrate is complained against. It is argued that a Magistrate acting under S. 346(2), Criminal P. C., has no jurisdiction to try the accused for an offence in respect of which they have been discharged. The order of discharge could be set aside only under S. 437. Criminal P. C., and so long as the discharger remains in force, it was not competent for the Sub-Divisional Magistrate to convert the Calendar Case into a Preliminary Enquiry case for and offence under S. 307, Penal Code. The grievance of the petitioners seems to be a legitimate one. In this case, the Magistrate has discharged this petitioners for an offence under S. 307, Penal Code, and submitted the records to the Sub-Divisional Magistrate as he felt that the offence disclosed by the evidence of the prosecution with nesses were of a first class nature triable by First Class Magistrate. All taht the Sub-Divisions Magistrate could do was to try the case as transferred to him. If the parties concerned though that the order of discharge required to be revised they could have moved under S. 437. Criminal P. C. any of the Courts mentioned therein.
That such a revision could be entertained against an order of discharge similar to the ..... passed in this case is clear from a Full Bench decision of the Madras High Court in -- 'Na Baligadu, In re', : AIR1951Mad0 (FB) (A), which I was a party. It was held there, that order, which said that no prima facie case was made out against an accused, for offences trial exclusively by the Court of Sessions and therefore he should be discharged of those offence and the evidence disclosed only lesser offence not triable exclusively by a Magistrate amounts to an order of discharge within the meaning S. 253, and could be revised under S. 437, Criminal P. C., notwithstanding the case against an accused for lesser offences was still pending.
(4) If the order of discharge passed by the Magistrate that originally tried it in respect an offence under S. 307, Penal Code. is ..... reversed under S. 437, Criminal P. C., the Sub-Divisional Magistrate while trying the case under S. 346(2), Criminal P. C., cannot convert the case into a preliminary register case in respect of the same offence which in effect amounts to setting aside the order of discharge. As it is not competent for this Magistrate to do so, he is directed to try the case as a calendar case as it was transferred to him by the Stationary Sub-Magistrate, Pulivendla. The revision petition is therefore allowed.