Kuppuswami Ayyar, J.
1. The two accused in C.C. No. 486 of 1946 on the file of the Stationary Sub-Magistrate, Tirupati, seek to revise the order of the District Magistrate of Chittoor in Crl. R.P. No. 15 of 1946, directing the case to be treated as a preliminary register case under Section 395, Indian Penal Code. A complaint was filed against the petitioners alleging that they entered the house of the complainant and stole some cinema articles. The Magistrate admitted the case under Section 380, Indian Penal Code, on receiving the complaint. When the case was pending, the Additional Magistrate was moved and he directed that the case should be treated as a preliminary register case and proceeded with under Section 395, Indian Penal Code.
2. It is stated that the Magistrate had no jurisdiction to pass an order like this without notice to the petitioners and secondly that he had no jurisdiction to pass such an order. In this case the order admitting the complaint for an offence under Sections 454 and 380, Indian Penal Code, is construed as an order dismissing the complaint for an offence under Section 395, Indian Penal Code. I do not think the Magistrate was justified in having so construed. When a complaint is made, the trying Magistrate need not admit the case in respect of all the offences mentioned in the complaint. If after enquiry he finds that a more serious offence has also been committed, he can frame a charge and proceed with the trial. Therefore it cannot be said that the order of the trying Magistrate amounted to dismissal of the complaint under Section 395, Indian Penal Code, to justify the order passed by the Additional District Magistrate ; nor can it be said that in a case like this a prosecution for a more serious offence can be ordered by an Appellate Court without notice to the accused and without hearing him. It is open to the trying Magistrate after taking the evidence to frame a charge on a graver offence if it was committed and then commit the accused to trial. All that is objected to is that the Additional District Magistrate should not have given the direction and that an order will have to be passed by the trying Magistrate himself and not by the Appellate Magistrate. To this extent the argument has to be accepted.
3. The order directing the prosecution for an offence under Section 395, Indian Penal Code, is set aside, and the matter will be left to be decided by the trial Court after taking the necessary evidence.