Subba Rao, C.J.
1. This is a revision against the order of the learned District Magistrate, Eluru, West Godavari, dismissing the revision petition filed by the petitioner against the order of the Sub-Magistrate discharging five of the seven accused,
2. The facts that gave rise to the revision may be briefly stated. The petitioner filed a complaint against seven accused under Section 427, .Indian Penal Code, alleging that the said accused damaged and destroyed cocoanut seedlings which he had planted along the Rameswaram Channel bund between mile 1/5 and 1/7 and caused damage to him. The learned Sub-Magistrate, after recording evidence, discharged the five respondents under Section 253, Criminal Procedure Code. The complainant preferred a revision to the District Magistrate. The District Magistrate mainly relying upon the decision of the Madras High Court in In re Jayaraman, ILR (1949) Mad 137 : AIR 1949 Mad 66 (A), dismissed it on the ground that a revision does not lie against a discharge order pending final disposal of the case. Hence, the revision.
3. The short question in this revision is whether a revision lies against the discharge order made by the Magistrate in respect of some accused pending final disposal of the case. Govinda Menon, J., in ILR (1949) Mad 137 : AIR 1949 Mad 66 (A), considered this question and made the following observations at page 138 (of ILR Mad) : (at p. 66 of AIR):
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.
4. Later on, the learned Judge proceeded to state:
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.
5. It is said that the judgment of Govinda Menon J., was overruled by the Full Bench decision of the Madras High Court in Nalla Baligadu v. State : AIR1951Mad0 (B), and that, therefore, it is no longer good law. : AIR1951Mad0 (FB) (B), after hearing the prosecution evidence, the Stationary Sub-Magistrate came to the conclusion that no case was made out against the petitioners under Section 302, Indian Penal Code and that the evidence disclosed only a lesser offence against them. On that basis, he framed charges for offences under Sections 147, 148 and 324, Indian Penal Code and began to proceed with the trial of the case. Treating that order as an order of discharge so far as the offence under Section 302, Indian Penal Code, was concerned, the prosecution moved the District Magistrate to revise the order of the Stationary Sub-Magistrate. The District Magistrate set aside the order and directed the petitioners to take their trial before the Sessions Judge. Against that! order, the petitioners filed a revision to the High Court. It was contended that the District Magistrate had no jurisdiction under Section 437, Criminal Procedure Code, to interfere with the order of the Stationary Sub-Magistrate as there was no discharge within the meaning of this section. The Full Bench held that the order of the Magistrate was in substance an order discharging the accused in respect of the offence under Section 302, Indian Penal Coda and, therefore, a revision would lie against the order of the District Magistrate. When the aforesaid judgment of Govinda Menon, J., was, cited, Balakrishna Ayyar, J., made the following observations at page 9 (of Mad LJ) : (at p. 805 of AIR):
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 has 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.
5a. Chandra Reddi J., who wrote a separate judgment, made the following similar observations with reference to the judgment of Govinda Menon J.
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.
6. The effect of the Full Bench judgment on the view expressed by Govinda Menon J., may be stated thus. A revision lies against an order of a Magistrate discharging some of the accused, either expressly or impliedly. But when reasons are not given and when there are other circumstances making it not advisable for the revisional Court to interfere at that stage, the revisional Court will be well within its rights in dismissing the revision. In this case, the Sub-Magistrate did not give any reasons for discharging some of the accused. All the circumstances present in the judgment of Govinda Menon J., are present here. For the same reasons, I think the learned District Magistrate was justified in dismissing the revision. There are no grounds for interference in revision.
7. The revision petition fails and is dismissed.