P.C. Banerji, J.
1. Chhote Lal, the applicant, was charged with having rescued his father, who had been arrested under the orders of the Revenue Court in execution of a decree passed by that Court, The Magistrate who tried him recorded the evidence for the prosecution, framed a charge against him and called upon him to plead. The record shows that the accused pleaded not guilty but refused to call witnesses. A date was fixed for the hearing of the case after the charge had been framed and the plea of not guilty had been entered; and on that date, for reasons stated in the judgment, the Magistrate trying the case passed an order of 'discharge.' This order was set aside by the District Magistrate and a further enquiry was ordered. The present application has been filed against the order of the District Magistrate directing a further enquiry by another Magistrate.
2. It is contended that the order of the Magistrate who tried the case, though it is in terms an order of discharge, is in substance and reality an order of acquittal, and that, therefore, the District Magistrate was not competent under Section 437 to order further enquiry. Under the section last mentioned the Magistrate of the district is authorised to order further enquiry in a case of dismissal of a complaint under Section 203 or Section 204 of the Code of Criminal Procedure, or in a case in which the accused has been discharged. The real question, therefore, in this case is whether the order of the trial Magistrate passed on the 18th of June 1917 was an order of 'acquittal,' because if it was an order of acquittal,' further enquiry could not be ordered by the District Magistrate. Section 253 of the Code of Criminal Procedure provides that if upon taking all the evidence and making such examination of the accused as the Magistrate thinks necessary, he finds that no case against the accused has been made out, which if unre-butted would warrant a conviction, the Magistrate shall discharge him. It is thus clear that an order of discharge should be made before a charge has been framed. Section 254 provides for the framing of a charge if the Magistrate is of opinion that there is ground for presuming that the accused has committed the offence with which he is charged. The present case was a warrant case and, therefore, Section 253 and the following sections applied to the case. Under Section 255, the Court is required to ask the accused after a charge has been framed and read out and explained to him, whether he is guilty or has any defence to make. In the present case it appears from the, record that after the charge had been framed, the accused was called upon to plead and he pleaded not guilty. The only order which the Magistrate could have passed after the accused had pleaded to the charge was either an order of acquittal or an order of conviction. In the present case the accused was not convicted. Therefore, he must be deemed to have been acquitted under Section 258. It is true that the Magistrate in his judgment used the word 'discharged', but that was a misuse of the word. The only order which he could have passed, if he did not convict, was an order of acquittal, and, therefore, the order passed on the 18th of June 1917 must be deemed to be an order of acquittal. This being so, the District Magistrate was not competent under Section 437 to order further enquiry and the order made by him for such enquiry is illegal. I accordingly set aside the order of the District Magistrate, dated fie 14th of August 1917.