1. Mr. Roy takes a preliminary objection to the trial in the Sessions Court on the same ground as was put forward in the Court below. It appears that an enquiry was held in this case by a Deputy Magistrate, who discharged the accused under Section 209 of the Code of Criminal Procedure. The District Magistrate, upon going through the record, came to the conclusion that the prisoner had been improperly discharged; he thereupon called upon the accused to show cause, why he should not be committed to the Court of Session; and, after hearing his pleader, directed his commitment.
2. Mr. Roy's contention is that the commitment is bad and ought to be quashed under Section 532 of the Code of Criminal Procedure, as the District Magistrate had no power himself to commit, be could only direct the officer, who had discharged the accused, to do so. In support of this contention, he refers to the language of Sections 436 and 437 and urges that the words 'order him to be committed for trial' in Section 436 mean that the Sessions Judge or the District Magistrate can only order the inferior Court to commit the accused for trial. In our opinion Section 437 deals with a totally different class of subjects, In considering the present objection we have to confine our attention to Section 436 with its provisos. We think that under that section the Sessions Judge and the District Magistrate have co-ordinate powers to order a commitment upon the evidence already taken, instead of directing a fresh enquiry. The first part of the section runs as follows:--'When, on examining the record of any case under Section 435 or otherwise, the District Magistrate, as in this case, 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, the District Magistrate may cause him to be arrested.' The second part goes on to say:--'And may thereupon,' that is, upon the recorded evidence, 'instead of directing a fresh enquiry, order him to be committed for trial upon the matter, of which he has been in the opinion of the District Magistrate improperly discharged.' In other words the District Magistrate may either direct a fresh enquiry by the inferior Court, which has improperly discharged the accused, or he may, in his discretion, order the commitment of the accused for trial before the Court of Session. This meaning is made clear by the proviso which follows:
3. 'Provided that the accused has had an opportunity of showing cause to such Magistrate, why the commitment should not be made; ' not to be made by anybody else, but by the Magistrate himself. The second proviso declares:--'If such Judge or Magistrate thinks that the evidence shows that some other offence has been committed by the accused, such Judge or Magistrate may direct the inferior Court to enquire into such offence.' Proviso (a) taken in connection with proviso (b) cannot leave any reasonable doubt that the commitment there intended is a commitment upon the record by the Sessions Judge or the District Magistrate, who, upon a perusal of the evidence, is of opinion that the accused has been improperly discharged. This view is in accord with that expressed in the case of Queen-Empess v. Krishna Bhat (1885) I.L.R. 10 Bom. 319 and no authority to the contrary has been laid before us. We, therefore, overrule the objection.