Debabrata Mookerjee, J.
1. The petitioner has been convicted tinder Section 323 of the. Indian Penal Code by the Additional Chief Presidency Magistrate of Calcutta and sentenced to pay a fine of Rs. 50/-, in default, to suffer rigorous imprisonment for one month.
2. The prosecution case briefly stated is that on the 23rd February, 1956, an Inspector of the Collection Department of the Calcutta Corporation proceeded to No. 1, Prannath Sen Lane, accompanied by bailiffs to execute a distress warrant. It is said that the petitioner, an occupier of the premises, resisted execution and abused the Corporation staff and caused hurt to one of the bailiffs. As the result of investigation consequent on an information lodged, the police submitteda charge-sheet under Section 332 of the Indian Penal Code, The Additional Chief Presidency Magistrate took cognisance but on perusal of the papers and documents filed before him along with the charge-sheet, came to the conclusion that the case was one under Section 323 and not Section 332 of the Indian Penal Code. He accordingly proceeded to try the charge under Section 323 in accordance with the provisions of Chapter XX of the Code of Criminal Procedure.
3. The only point urged in the case is that the learned Magistrate erred in Jaw in trying the accused under Section 323 of the Indian Penal Code alter having discharged him in respect of an offence under Section 332 of the Code. The contention is that under the provisions of Section 251-A (2) of the Code of Criminal Procedure, the Magistrate is bound to discharge an accused parson if upon a consideration of all the documents referred to in Section 173 find after such examination of the accused as the Magistrate thinks necessary and upon hearing the defence and the prosecution, he considers the charge to be groundless. In other words, when a charge triable under the warrant case procedure under Chapter XXI of the Code of Criminal Procedure is found to be ground-less, the Magistrate is bound to discharge the accused and leave him to be proceeded against, if at all, in an independent proceeding under the provisions of Chapter XX of the Code. Mr. Ghosh contends that the conviction in the present case having been had as the result of a trial held in disobedience of the provisions of Section 251-A (2) is bad and requires to be set aside.
4. Chapter XXI of the Code of Criminal Procedure deals with the trial of warrant cases by Magistrates, and provides that in cases instituted on police reports, the procedure prescribed In Section 251-A has to be followed, and in any other case, the Court is enjoined to follow the provisions specified in the other provisions of the chapter. In this case, the prosecution having originated in a police report, the Magistrate was required to follow the procedure prescribed in Section 251-A. Accordingly, the learned Magistrate on a perusal of the police papers and documents referred to Section 173 and after hearing the parties came to the conclusion that the charge under Section 332 of the Indian Penal Code was clearly unsustainable, and in that view of the matter, directed the discharge of the accused in respect of the offence under Section 332. but as there was evidence prima facie to establish a charge under Section 323, of the Indian Penal Code, the learned Magistrate chose to proceed in accordance with the provisions of Chapter XX of the Code of Criminal Procedure. Mr. Ghosh on behalf of the petitioner contends that the learned Magistrate could not in law do so, and should have merely discharged the accused, leaving him to be prosecuted jf at all, in a different proceeding by any person interested in such prosecution. It is argued that Sub-section (2) of Section 251-A makes it obligatory on the Magistrate to make an order of discharge when from the police papers and arguments addressed to him, it appears clear that the charge preferred against the accused is groundless. No other duty is cast upon the Magistrate than merely to record an order of discharge in such cases.
5. I do not agree with the contention that after having perused the papers and documents referred to in Section 173 of the Code of Criminal Procedure and after hearing the accused and the prosecutor, the Magistrate has only the power to discharge and has not the power to proceed with the trial of the offence disclosed which may be a summons case offence. The Legislature has directed the Magistrate to discharge the accused in a given set of circumstances, viz., when he finds that the charge preferred is not maintainable against the accused; but that does not prevent the Magistrate from proceeding with the trial of an offence which the materials might disclose as the real offence committed by the accused. A contrary view would tie the Magistrate inexorably to the offence mentioned by the police in their charge-sheet. If the Magistrate finds on the materials before him that a summons case offence has been committed by the accused, he has, in my view, the right and duty to proceed in accordance with the provisions of Chapter XX of the Code of Criminal Procedure. The word 'discharge' used in Sub-section (2) of Section 251-A of the Code of Criminal Procedure must be read as having reference to a discharge in relation to the specific offence upon which the accused has been charge-sheeted. It does not necessarily mean that the accused cannot be proceeded against for some other offence, say a summons case offence, under Chapter XX of the Code of Criminal Procedure.
6. In this case, as soon as the Magistrate found that allegations of offence under Section 323 of the Indian Penal Code were prima facie made out, the procedure appropriate to the trial of a summons case offence was adopted, and the trial was held in accordance with the provisions of Chapter XX of the Code of Criminal Procedure. This, in my view, was the correct procedure to adopt, and I do not agree with the contention that the Magistrate erred in conferring upon himself a jurisdiction which had not been vested in him by law.
7. The result is that this Rule is discharged.