1. This application arises under the following circumstances: Two persons Sheo Narain and Arjun Singh, were placed before a Magistrate of the second class for trial on charges under Sections 307 and S23 of the Indian Penal Code. The learned Magistrate passed an order formally discharging Arjun Singh but he went on to frame a charge under Section 323 only against Sheo Narain Singh, who was directed to enter on his defence at the next hearing, In the course of his order the learned Magistrate recorded: 'In my opinion there is evidence of marpit against Sheo Narain Singh accused. A charge was, therefore, framed under Section 323 of the Indian Penal Code and was read over to and explained to him,' The District Magistrate called for the record and gave both the accused notice and considered everything that was said by counsel engaged on their behalf and ordered further inquiry against both the accused. In this revision before me it is argued:
(1) That there was no ground for ordering further inquiry on the merits, and
(2) That as against Sheo Narain Singh the order was one which could not have been passed by the learned District Magistrate under the provisions of Section 437 because it was said that on the plain wording of that section, it can only come into operation in the case of an accused person who has been discharged.
2. It is argued that far from there being an order of 'discharge ' against Sheo Narain Singh, the case is actually pending against him, and final orders have not yet been passed.
3. On the first ground I do not see any reason whatever to interfere. There was evidence on the record and the offence was a very serious one, triable exclusively, so far as Section 307 is concerned, by a Court of Session. On the second ground it seems to me that the objection is purely technical. It is admitted that if the Magistrate had gone on with the case and convicted the accused under Section 323, it would have been possible for the learned Sessions Judge to call for the record and report the matter to this Court which certainly could, if it was so advised, set aside the whole trial and order further inquiry or order commitment to the Court of Session. However, I find that there is the authority of a Full Bench of the Madras High Court, namely, Krishna Reddi v. Subbamma (1900) I.L.R. 24 Mad. 136, which covers this case. In that case a Magistrate was inquiring into offences under Sections 477 and 379 of the Indian Penal Code. Ho ultimately acquitted under Section 379 and said nothing in his order about the charge under Section 477. That also was an offence which was exclusively triable by a Court of Session. The High Court held: -' From the terms of the Magistrate's order it is clear that he adjudicated upon the question whether there was any evidence against the accused in respect of the major offence; the Magistrate came to the conclusion that there was not and he declined to charge him with the major offence. It seems to us that this is a discharge within the meaning of Section 209.'
4. Similarly in this case the Magistrate has said that there is evidence against Sheo Narain Singh of marpit. I take this to be equivalent to saying that there is no reliable evidence against him on the major charge. The District Magistrate is of opinion that there is. I think, therefore, that it was within the jurisdiction of the Magistrate to pass the order. But in any case, assuming that it was not I think this is certainly a case in which there should be further inquiry. I say this without any reference to the merits of the case.