1. The petitioners were discharged under Section 209, Criminal P. C., by the Court of first instance which was the Additional Sub-Magistrate of Tirupathur. On an application by the prosecution the learned Sessions Judge of Ramnad has set aside the order of discharge and directed the Magistrate to pursue a course of action which may best be described in the words of the learned Judge himself, and they are in the following terms ;
'I allow the revision petition, set aside the order of the lower Court and direct that a charge be framed against the accused under Section 477, Penal Code.'
Neither Mr. Jayarama Iyer for the respondents nor the Public Prosecutor has been able to find any provision of law in the Criminal Procedure Code which would justify a Sessions Judge directing a Magistrate who has held a preliminary enquiry to frame a charge. Section 437, Criminal P. C., provides that on finding that an accused who is exclusively triable by a Court of Session has been improperly discharged by a Court of first instance, the Sessions Judge or the District Magistrate may cause him to be arrested and instead of ordering a fresh enquiry order him to be committed for trial upon the matter on which he has been wrongly discharged. Reading Sections 486 and 437 together, it is seen that only two courses are open to the Sessions Judge, namely, either to straightway order the committal of the accused or direct the Magistrate to enquire into the matter afresh, the result of adopting the latter course being that all the previous proceedings and the examination and cross examination of witnesses and the other evidence let in would be wiped off the record, Now what the Sessions Judge has done here is to direct a charge to be framed which the Magistrate can do under Section 210. Then the subsequent procedure to be followed by the Magistrate, namely, asking the accused to provide a list of witnesses to be examined and the examination of the defence witnesses by the accused will all have to go on. It is not open to the sessions Judge to make an order by which part of the preliminary enquiry proceedings are to be confirmed and the other part of it to be set aside. Virtually, that is the outcome of the learned Judge's order in this case. Under the law it is open to the Magistrate even after framing a charge to cancel the charge. It seems to me, therefore, that the course of action pursued by the learned Sessions Judge is unsupported by the sections of the Code and is unprovided by law. Such being the case, the order of the learned Sessions Judge is set aside and the order of discharge by the trial Court is confirmed. C.R.K./K.S. Revision allowed.