Prinsep and Ameer Ali, JJ.
1. The complaint originally made before the Magistrate indicated the commission of what is known as a Sessions case, probably dacoity. The Magistrate, in dealing with the case, proceeded under Section 209 of the Criminal Procedure Code, which declares that if the Magistrate should find that there are not sufficient grounds for committing the accused for trial, he should discharge him, unless it appears to the Magistrate that such persons should be tried before himself or some other Magistrate, in which case he shall proceed accordingly. The Magistrate found that no sessions offence was prima facie established, and he, accordingly, proceeded to hold the trial himself, that is to say, he proceeded under Section 254 of the Code, and he framed a charge in writing against the accused, of the offence of theft in a building under Section 380, and criminal trespass under Section 448, Indian Penal Code. Finally, the Magistrate acquitted the accused and, under Section 195 of the Code of Criminal Procedure, he gave sanction to prosecute the complainant under Section 211 of the Penal Code for making a false complaint. The complainant then went to the Sessions Judge and asked to have this order revoked. The Sessions Judge proceeded to consider the entire case, not merely whether sanction to prosecute should or should not be given, and finding that proper inquiry had not been made, as all the evidence available had not been taken and that, if such inquiries were held, a sessions offence might be established, he directed that further inquiry should be held, and that the Magistrate should proceed in accordance with the result of such inquiry, leaving it still open to him, if he should find that the complaint was false, to give sanction to prosecute the complainant under Section 211, Penal Code. On an application made on behalf of the accused persons in that case to set aside this order as without jurisdiction, a rule was granted, which has now come on for hearing.
2. On full consideration of the arguments of the learned Counsel, who appeared on both sides, we have no doubt that the Sessions Judge in this matter has exercised a jurisdiction which was not vested in him by law. If he proceeded to exercise the powers of revision as he seems to have done, he was competent to send for the record for any of the purposes mentioned in Section 435. But he was not competent under Section 436 to direct a fresh inquiry to be made, inasmuch as the accused had not been improperly discharged of an offence triable exclusively by a Court of Sessions but had been acquitted of an offence within the Magistrate's jurisdiction, in proceedings, as already pointed out, under sections, 209, 234 and 253. The Sessions Judge, as a matter of fact, has exercised a jurisdiction vested in him as an Appellate Court under Section 423, as if an appeal had been presented to him from the order of acquittal passed by the Magistrate. Such powers are in revision conferred under Section 439 only on the High Court. In the present rule, we desire to express no opinion on the merits of the case, but merely to hold that the order of the Sessions Judge directing further inquiry is bad, and must therefore be set aside.
3. As we have been pressed to express some opinion regarding the effect of the Sessions Judge's order on the sanction given by the Magistrate to prosecute under Section 211, Penal Code, we would merely say that as we understand the effect of the order of the Sessions Judge, it is to revoke the sanction given. The propriety of the order sanctioning the prosecution or revoking it is not before us.