1. This is a reference made by the Second Additional Sessions Judge of Aligarh. He sends us an order passed by a first class Magistrate of Etah ordering the discharge of several persons accused before him and directing the complainant to pay compensation to the accused persons. The order directing payment of compensation is undoubtedly, to my mind, illegal and must be set aside. The offence with which the accused were charged was really an offence under Section 494 of the Indian Penal Code; Sections 363 and 420 of the Indian Penal Code, which were added as Sections under which the accused were alleged to be guilty, were mere appendages to the original Section. The Magistrate had no jurisdiction to try the offence under Section 494 of the Indian Penal Code. Sections 250 and 253 of the Code of Criminal Procedure are to be found one in a chapter which deals with the trial of summons cases by a Magistrate, and the other in a chapter dealing with the trial of warrant cases by Magistrates. This was neither a summons nor a warrant case. All that the first class Magistrate had jurisdiction to do in a case of a charge of an offence under Section 494 of the Indian Penal Code was to follow the procedure laid down by chapter XYIII of the Code of Criminal Procedure. In that chapter neither Section 250 nor Section 253 finds any place. The order directing payment of compensation is set aside and the compensation or such part of it as may have been paid will be at once refunded.
2. In going into the case, however, a more important question arises and that is whether the Magistrate, Babu Brij Nath Ugra, was justified in discharging the accused. I hold that he was not. He has evidently misconceived the purpose and the intention of Section 209 of the Code of Criminal Procedure. He has written a judgment in the case. Now if the learned Magistrate will look at Section 209 he will find that he is not authorized to write a judgment in a case triable by a Court of Session; all that he is empowered to do is to record reasons for a discharge if he make such an order and to pass the order of discharge. This Court has gone into the matter at) considerable length in the case of Fattu v. Fattu (1). The learned Magistrate has done exactly what this Court in the case cited above condemned. He has criticized the evidence given with painful minuteness. He has found it entirely unreliable and worthless, and he has written a paragraph saying that he is dealing with the complainant for making a malicious complaint without any foundation to harass the accused. The case has to be thoroughly inquired into. A thorough and complete inquiry has not been made. I set aside the order of discharge and I return the case to the District Magistrate of Etah who will direct Babu Brij Nath Ugra, if he is still there, or some other Magistrate competent to hold inquiry, to take any further evidence that may be offered, to examine the accused, and to commit them to the Court of Session for trial.