1. This is an application for the revision of an order of the Sessions Judge of Bareilly parsed in the following circumstances. Four persons were charged before a first class Magistrate with offences under Section 328, Indian Penal Code. Two of them were convicted under that section and sentenced to terms of imprisonment and the other two were acquitted because the Magistrate considered that the evidence against them fell short of absolute proof. The complainant in the case applied to the Sessions Judge for revision of the order of acquittal, and the two persons who had been convicted also appealed against their convictions and sentences, and in the order with which I am now concerned the Sessions Judge allowed the revision and ordered that the two present applicants Sukh Lal and Bhola should be committed to Sessions on a charge under Section 308, Indian Penal Code. The Sessions Judge remarked:
All the four accused persons are alleged to have assaulted Mindhai at one and the same time and three of them were armed with spears. Although it may not be possible to infer that they intended to kill Mindhai, the nature of the injuries and the manner of the assault do indeed show that they intended to cause such bodily injuries on him as were likely to cause death and in the circumstances the proper charge to frame against them was one under Section 308, Indian Penal Code.
2. He has discussed the evidence to a certain extent and he has also remarked that two of the accused persons (i. e. the present applicants) have been acquitted without sufficient reasons. But the main cause of his order is that the Magistrate should not have disposed of the case himself but should have committed it to Sessions.
3. It has been argued by Mr. Aziz that the order of the Sessions Judge is an illegal one. Under Clause (4) of Section 403 of the Criminal Procedure Code, a person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged, and it is freely admitted by Mr. Aziz that the mere fact that the two applicants have been acquitted of offences under Sections 323 and 326, Indian Penal Code, will not save them from being tried on the same evidence for an offence under
4. Section 307, Indian Penal Code, i. e., an offence of attempted murder, which the Magistrate who has acquitted them was not competent to try. The argument is, however, that the Sessions Judge is not empowered by either Section 436 or 137 or any other section of the Criminal Procedure Code to set aside an order of acquittal, or to order the commitment of the applicants for trial for an offence in respect of which no order of discharge has been pronounced. I need not now consider the question of Section 436 because the order of the Sessions Judge purports to have been passed under Section 437, Criminal Procedure Code and under that section the Sessions Judge:
On examining the record of any case under 8. 435 or otherwise, may, if he considers that such case is triable exclusively by the Court of Session and that an accused person has been improperly discharged by the inferior Court.... order him to be committed for trial upon the matter of which he has been.... improperly discharged.
5. In the present case no express order of discharge of an offence under Section 307 or Section 308, Indian Penal Code, was pronounced or recorded by the Magistrate, but the record shows that the Police Report on which the case was instituted in the Court of the Magistrate quotes Section 307 together with Section 326 as the appropriate section of the Code under which the accused are to be prosecuted. There is nothing in the order of the Magistrate to show that he consciously considered whether Section 307 would be applicable to the case against the accused, and it is argued by Mr. Aziz that for this reason it cannot be said that any order of discharge of the offence of attempted murder was implied by the Magistrate when he passed his order acquitting the applicants under Section 323 and Section 326, and therefore it is said the Sessions Court had no jurisdiction to direct a commitment.
6. It may be said at once that the Sessions Judge's order, in so far as it purports to set aside the order of acquittal, i. e., acquittal on the charge under Section 326, Indian Penal Code, appears to be without jurisdiction and is null and void, but this does not affect the question of whether the order of commitment for trial under Section 303, Indian Penal Code is a good and legal order. In the case of In re Marappa Goundan 47 Ind. Cas. 669 : 41 M. 982 : A.I.R. 1919 Mad. 817 : (1918) M.W.N. 486 : 24 M.L.T. 82 : 35 M.L.J. 667 : 19 Cr.L.J. a Bench of the Madras High Court had to deal with a somewhat similar matter. A Magistrate had taken cognisance of a case on a Police charge sheet charging the accused with the offences of assault and hurt under Sections 354 and 323, Indian Penal Code, but there was no mention of a charge under Section 376 and the prosecution did not press for a charge under that section. The Magistrate drew charges under Sections 354 and 323, but the District Magistrate on a petition of the complainant's revised the order and directed the commitment of the accused under Sections 376 and 511, but the High Court held that as the attempt of rape was not mentioned in the Police charge sheet on which the Subordinate Magistrate took cognizance of the case, and the prosecution did not press for the framing by the Magistrate of a charge in respect of that offence, the Sessions Judge was justified in holding that the District Magistrate had no authority to interfere in revision in deciding that matter. The Bench do not refer to any section of the Criminal Procedure Code, but they have differentiated the case before them from that decided by a Full Bench of the Madras High Court in the case of Krishna Reddi v. Subbamma 24 M. 136 to which I shall refer again later on Mr. Aziz has also referred to some cases decided in this High Court, viz., Bindeshri Dube v. Emperor 59 Ind. Cas. 193 : 189 A.L.J. 1135 : 22 Cr.L.J. 49 : A.I.R. 1920 All 266 : 2 U.P.L.R. (A.) 374 and Umrao Khan v. Emperor 71 Ind. Cas. 600 : 21 A.L.J. 194 : A.I.R. 1923 All. 484 : 24 Cr.L.J. 184 but these relate rather to the merits of the case and do not really touch the question which have now to consider. In the case of Abdul Hakim v. Bazruk Ali 41 Ind. Cas> 658 : 22 C.W.N. 117 : 18 Cr.L.J. 834 : 26 C.L.J. 210 however, a Bench of the Calcutta High Court considered this question at some length. They were deciding a case in which a person had been accused in a Magistrate's Court for an offence under Section 465, Indian Penal Code and had been acquitted. The Sessions Judge in revision directed the commitment of the accused on a charge under Section 467, and the High Court held that as there was nothing in the Magistrate's order to show that in his opinion on the materials before him the accused should not be charged under Section 467, Indian Penal Code, the order could not be interpreted as being an order of discharge and therefore the Sessions Judge had no power to direct the commitment of the accused or to order a further enquiry in respect of that offence. In the course of that judgment they remarked:
The acquittal of an accused on a charge framed does not necessarily imply that the Magistrate discharged him in respect of any other charge which might have been framed. The Magistrate must consciously do something or make some order which shows that in his opinion on the materials before him the accused should not be charged for that offence.
7. It may be accepted that the conviction or acquittal of an accused person on a charge framed does not and cannot carry with it the implication that he has been discharged of every other conceivable offence, and the opinion of the Calcutta Bench undoubtedly was that the only order of discharge that can be held to be implied in a Magistrate's order is one with regard to a matter on which the Magistrate has adjudicated.
8. In support of the order passed by the Sessions Judge, Mr. Pathak has pointed to some decisions in which the circumstances were more or less similar to those in the present case. I have already referred to the Fall Bench decision of the Madras High Court in the case of Krishna Beddi v. Subbamma 24 M. 136. In that case certain persons were charged before a Magistrate under Section 379, Indian Penal Code and the prosecution applied for a further charge under Section 477 but the Magistrate declined to add this charge because, in his opinion, there was no direct evidence that the accused bad destroyed or secreted the note. He acquitted the accused of the offence under Section 379 and the Sessions Judge directed the committal of the accused for trial under Section 477. The High Court decided that as the order of the Magistrate was in substance one discharging the accused in respect of the offence under Section 477, the Sessions Judge had jurisdiction to make the order. In the course of the judgment, the Bench remarked:
Chapter XVIII relates to enquiries into cases triable by the Court of Session or High Court. The primary object of Section 209 is to make provision for the procedure in such cases. If, in the opinion of the Magistrate, there is no evidence to warrant a charge for an offence exclusively triable by a Court of Session, he may discharge the accused in respect of the alleged offence and, having done so, may proceed as regards the minor offence or offences under Chap. XXI or other appropriate chapter. In fact, a Magistrate cannot proceed to act under the latter part of sub Section (1) of Section 209 until he has discharged the accused under the former part of the Sub-section This is the course which the Magistrate adopted in the present case.
9. This decision has been quoted in a case before the Allahabad High Court reported as Sheo Narain Singh v. Radha Mohan 53 Ind. Cas. 618 : 42 A. 128 : 20 Cr.L.J. 778 : A.I.R. 1919 All. 66 : A.L.J. 1093 : 1 U.P.L.R. (A.) in which a Single Judge of this Court decided that in a case where two persons were put on trial before a second class Magistrate for offences under Section 307 and Section 323, Indian Penal Code and one of them was discharged and the other charged under Section 323, the effect of this was equivalent to a discharge so far as the offence under Section 307 was concerned and it was open to the District Magistrate to direct a further enquiry. It is difficult to distinguish this case On the merits from the present one, for in the present case, as in the reported case, the accused had been placed on trial before a Magistrate for offences under Section 307 and Section 323, Indian Penal Code, and the Magistrate, though he framed a charge under e. 323 omitted to say anything about Section 307. Mr. Aziz has argued, however, that the learned Judge might have distinguished the circumstances of that case from those in the case before the Full Bench of the Madras High Court, because in the Madras case the prosecution pressed for a charge under Section 477 and the Magistrate, after considering the evidence, declined to frame a charge under that section. In the case of Emperor v. Zuji Manu 5 Bom. L.R. 125 the circumstances were similar to those in the Madras case, that is to say, the Magistrate found that the major offence was not made out and charged the accused with the minor offence and convicted him. The District Magistrate directed the convicting Magistrate to commit the case to the Court of Session for trial under the major charge, and the High Court held that his order was a legal one. From these decisions it appears that the one decision of the Allahabad High Court that is really apposite is in favour of the legality of the order of the Sessions Judge. But it is argued for the appellant that that case does not state the law correctly and that a distinction must be drawn, between those cases where the Magistrate has consciously dealt with the evidence for the major offence and decided not to draw a charge, and those cases where he has ignored the existence of the complaint of the major offence altogether.
10. I have already said that an order, either of acquittal or conviction, cannot be held to carry with it the implication that the accused has been discharged of all other conceivable offences, and there is the authority of the Calcutta High Court for holding that where there is nothing in the order of the Magistrate to show that he has considered whether the major offence has been committed or not, it ought not to be held that an order of discharge of the major offence is implied. In the Calcutta case, however, as I have remarked, there was apparently no complaint of the major offence, and the first occasion on which the question of whether the major offence had been committed was considered, was when the matter came before the Sessions Judge. In the present case and in the other Allahabad case to which I have referred, there was before the Magistrate a complaint or a report to the effect that the major offence had been committed. It is true that there is very little evidence in the present case to show that the prosecution pressed for a charge under Section 307 or Section 308, nevertheless the offence was on the charge sheet forwarded by the Police, and it would be impossible to hold that there was no case of attempted murder before the Magistrate for decision or enquiry. When the matter came before him he had to decide whether to frame a charge under that section and to commit him for trial or not, and as he did not frame a charge, there can be no explanation of what happened to the complaint or the report unless there was an implied order of discharge. This appears to be the opinion expressed in the decision of the Full Bench of the Madras High Court, to which I have referred, and I am prepared to follow that as it is undoubtedly in consonance with the trend of the other decisions that have been referred to in this case, and is not really inconsistent with the decision of the Calcutta Bench reported as Abdul Hakim v. Bazruk Ali 41 Ind. Cas. 658 : 22 C.W.N. 117 : 18 Cr.L.J. 834 : 26 C.L.J. 210.
11. In my opinion, therefore, there was a case before the Magistrate under Section 307 and although he has not passed any orders in regard to that part of the case it must be held that an order of discharge is implied. The Sessions Judge therefore had jurisdiction under Section 437, Criminal Procedure Code to direct that the applicants should be committed for trial. As regards the merits of the case, it need only be said that the Magistrate apparently considered that no charge should be drawn and the Sessions Judge considered that there had been a miscarriage of justice and that the Magistrate in disposing of the case under Section 07 himself was clutching at jurisdiction with which he was not invested. There is no reason, there for to interfere and I dismiss the application.