1. This is an application in revision from an order of the Sessions Judge of Bulandshahr setting aside an order of the District Magistrate under Section 250, Criminal P.C., on the ground that that order had been passed in a case in which the charge was Under Section 307, I. P.C., which was exclusively triable by the Court of Session, and that Section 250, Criminal P.C., was not applicable. The question raised is not without difficulty. Section 250, Criminal P.C., is included in Chap. 20, which deals with the trials of summons cases by Magistrates, but the section itself comes under the heading ' Frivolous accusations in summons and warrant cases ' and the section itself shows that it applies to all ' offences triable by a Magistrate.' It is however quite clear, nor is the point contested before me, that the section cannot be applied in cases triable by a Court of Session. What has been argued before me is that the present case was not really a case under Section 307, I. P.C., but one under Section 323 or Section 147, and was triable by a Magistrate and was in fact tried by the Magistrate, and that the proceedings were not merely an enquiry under Chap. 18, Criminal P.C. It will be helpful to set forth exactly what happened. The complaint was made and the complainant's statement was recorded on 4th January 1930. The sections mentioned in it are Section 307 as well as Sections 147 and 323. The Magistrate ordered a copy of the statement to be sent to the police for an enquiry and report before 14th January and on 10th January the report was returned to the effect that the case was one under Section 147, i. e., riot, that the injuries were simple, that no investigation was considered necessary, but that if further time was given a full investigation would be made. On 16th January the Magistrate caused notices to be issued to the accused and to the witnesses for the prosecution without mentioning any section. The complainant made an application for the summoning of witnesses, and again made mention of Sections 307 and 147, and summonses were issued under those sections. Whether the procedure from that stage was under Chap. 18 or Chap. 21, it is really impossible to decide, because there does not appear to be any essential difference in the manner in which the witnesses for the prosecution are to be examined and other proceedings are to be conducted prior to the framing of the charge. No charge was drawn Up, and the order to which exception is now taken was passed when the accused were discharged. It is argued on the one hand that the Magistrate must have been proceeding under Chap. 18 because he issued summonses under Section 307. It is argued on the other hand that ha had accepted the police report, showing that the offence was a trivial one and the injuries simple. He did not issue a nonbailable warrant as he would have done if he had believed that there was a case under Section 307, I. P.C.
2. In fact although the summonses were issued as a matter of routine under Section 307, because that section had been made by the complainant, the Magistrate himself never had any idea that it would be necessary to frame a charge under that section, or to commit the case to the Court of Session. He did in fact believe that he was conducting a trial and not an enquiry, and that as a matter of fact what took place was a trial and not an enquiry.
3. The Sessions Judge in allowing the appeal against the Magistrate's order has referred to a recent decision of this Court in Hari Har Dat v. Maqsud Ali : AIR1926All159 , where Sulaiman, J., held that when a complaint is made to a Magistrate relating to several offences, some of which are exclusively triable by a Court of Session and the Magistrate discharges the accused under Section 209, Criminal P.C., he is not empowered to pass an order for compensation under Section 250 of the Code. In an earlier judgment of this Court in Het Ram v. Ganga Sahai  40 All. 615, Knox, J., held that Section 250, Criminal P. C, is not applicable where the charge which is being enquired into by a Magistrate is one which is exclusively triable by a Court of Session. It will be seen that in one of these cases the Complaint of the complainant has been made the criterion, and in the other the nature of the enquiry. In a later judgment of this Court : AIR1930All280 Pullan, J., declined to set aside an order under Section 250, Criminal P.C., in a case which was nominally one under Sections 463 and 323, I. P.C.; but in which the Sessions Judge held that there might have been a charge under Section 467, I. P.C. Mr. Saila Nath Mukerji for the applicant in the present case has relied especially on the following passage:
It was not in my opinion incumbent on the Magistrate to go out of his way to find that a case exclusively triable by a Court of Session might arise from the facts before him if they were proved. He was trying a case apparently within his jurisdiction. He found that there was no case and that it had been brought frivolously and vexatiously. He was therefore entitled to act under Section 250, Criminal P.C.
4. It is argued that the case here is exactly similar, though it does not appear whether there was any complaint under Section 467 in the case in which Pullan, J., refused to interfere. There has also been a reference to a case in M. Venkatraya v. K. Venkatrayar A.I.R. 1922 Mad. 223 in which a Magistrate tried a case as one under Section 463, I.P.C., and passed an order under Section 250, and although the High Court were of opinion that the offence disclosed was one under Section 467, I. P.C., they did not interfere with the Magistrate's order because he had proceeded under Chap. 21, Criminal P. C, and not under Chap. 18. Their view in fact seems to have been practically the same as the one taken by Knox, J., in this Court.
5. I would not myself like to subscribe to the view that the complaint is to regulate the proceedings, and that because a complainant mentions a section, a charge under which is triable exclusively by a Court of Session, he thereby binds the Court and at the same time protects himself against a fine for bringing a false and frivolous or vexatious accusation. The criterion is in my, opinion to be the form of the proceedings, i. e. whether they were conducted under Chap. 18 or Chap. 21; but it is frequently difficult to decide under which chapter the proceedings were conducted because, as I have already remarked, there is very little-difference at any rate in the stages before the charge is drawn. In the present case it must be allowed that there are indications that the Magistrate although he caused summonses to be issued under Section 307, I. P.C., believed himself to be conducting a trial and not an enquiry, and that he took no particular notice of the complainant's allegation that there had been an offence under Section 307, I. P.C. The law however is not quite clear on the point, and the learned Sessions Judge was certainly following authority in allowing the appeal. In these circumstances I do not think that I should be justified in interfering in revision with the order, and I must therefore dismiss the application.