1. An Indian, a police constable was complainant in this case and one of the accused was a European of the name of Mr. Marshall. In the first complaint Mr. Marshall was made the principal offender. On an application by him the Magistrate recorded a finding under Section 443(1), Criminal P.C., that the case was one which ought to be tried under the provisions of Chap. 33. Subsequently the Magistrate by an exceedingly summary order discharged Mr. Marshall on 18th September, and assumed jurisdiction himself to try the Indians who were prosecuted along with Mr. Marshall. Under Section 446, Criminal P.C., where a Magistrate decides under Section 443, that a case ought to be tried under the provisions of Chap. 33, and the case is a warrant case, the Magistrate enquiring into the case shall if he does not discharge the accused under Section 209 or Section 253, commit the case for trial to the Court of sessions whether the case is or is not exclusively triable by that Court. The provisions of that section are mandatory and a Magistrate after once deciding that he had no jurisdiction cannot assume jurisdiction by discharging the European British subject. In the present case it is obvious to me that the discharge was made in order to assume jurisdiction. Reference is made in the order of discharge by the Magistrate to a first statement of Beni Singh. How statement of' a witness made to the police can be used in evidence, is not explained. Such a statement can be utilized to contradict the statement of Beni Singh. The Magistrate, however, has not proceeded to discuss how Beni Singh's statement in Court is contradicted by another previous statement. There is nothing on the record to show that a copy of the previous statement was given to the defence in order to contradict Beni Singh. There was another complainant Lakhan Singh also and no reference is made to his evidence charging Mr. Marshall with the crime. He definitely stated 'The Babu and Sahib had asked them to bring us inside.' Another statement of Lakhan Singh is 'The Babu and Sahib asked Beni Singh to take up his puttis and half-pants.'
2. The order discharging Mr. Marshall is not before me for revision, but I mention these facts to indicate that the Magistrate has gone out of his way to assume jurisdiction by discharging Mr. Marshall on insufficient grounds. I do not think that the wording of Section 446 permits of such an assumption of jurisdiction. The Magistrate is empowered only to hold an enquiry in this case and if he does not discharge the Indian applicants, Banarsi Das, Ram Chandra, Sukh Lal, Jugal Kishore and Joti Swarup, he is bound to commit them to the Court of sessions and he is hereby directed to do so if he does not discharge them.