1. This Rule was issued at the instance of the petitioner, Abdul Hakim Khan. The petitioner was tried by a Magistrate exercising first class powers upon a charge of forgery framed under Section 465 of the Penal Code. The learned Magistrate found him not guilty and acquitted him under Section 258 of the Criminal Procedure Code.
2. The complainant in the case then moved the Sessions Judge of Backergunge upon the grounds that the document to which the charge related was a valuable security and that the petitioner should properly have been charged under Section 467 of the Penal Code and committed for trial upon that charge to the Court of Session.
3. It may be mentioned that an offence punishable under Section 465 is triable by a Magistrate of the 1st Class, while the Court of Session alone is empowered to try the aggravated offence of forging a valuable security, punishable under Section 467.
4. The Sessions Judge, having heard the matter, held that the offence alleged fell under Section 467 and he made an order directing that the petitioner be committed to the Court of Session for trial upon a charge framed under that section.
5. The question which arises is whether the learned Sessions Judge had jurisdiction to make that order, and for the present purpose it may be assumed, without deciding the point, that the document which the petitioner is said to have forged is a valuable security.
6. The order purports to be made under Section 436 of the Criminal Procedure Code, which runs as follow
When, on examining the record of any case under Section 435 or otherwise, the Sessions Judge or District Magistrate 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 Sessions Judge or District Magistrate may cause him to be arrested, and may thereupon, instead of directing a fresh inquiry, order him to be committed for trial upon the matter of which he has been, in the opinion of the Sessions Judge or District Magistrate, improperly discharged.
7. Then come two provisos:
Provided as follows,
(a) That the accused has had an opportunity of showing cause to such Judge or Magistrate why the commitment should not be made.
(b) That 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 inquire into such offence.
8. The question before us turns on the meaning of the word 'discharged' as used in the section. The same word is used in the following section, Section 437. Under the Criminal Procedure Code an acquittal means more than a discharge. A discharge takes place before a finding of 'guilty' or 'not guilty' is recorded and the guilt or innocence of the accused is not res judicata. A discharge generally takes place either under Section 209 in the Chapter headed of 'inquiry into oases triable by the Court of Session or High Court' or under Section 253 in the Chapter headed of the trial of warrant oases by Magistrates.' Both sections contemplate an inquiry into some alleged offence and as a result a discharge before any charge is framed against the accused. A discharge may also take place under Section 494, which again illustrates the general Rule of the Code that a discharge should precede the framing of a charge. I do not, however, say, and must not be understood as saying, that an accused cannot be discharged otherwise than under the specific provisions referred to. So much for the meaning of the term 'discharge'.
9. In the present case the petitioner was acquitted of an offence under Section 465 of the Penal Code. With that acquittal the Sessions Judge had no power to interfere. But an offence under Section 467 being exclusively triable by the Court of Session the petitioner under Clause (4) of Section 403 was (and is) still liable to be tried for that offence, the acquittal under Section 465 not operating as a bar, and if the petitioner can be said to have been discharged in respect of any such offence it was competent to the Sessions Judge to direct his committal.
10. In my opinion the acquittal of the petitioner on the charge actually framed does not necessarily imply that the Magistrate discharged him in respect of any other charge which might have been framed. Nor does the mere omission of the Magistrate to frame a charge under Section 467 carry the case further. So far as the record shows, the Magistrate never considered whether the accused had or had not committed an offence under Section 467. His mind was never directed to that issue and it was not inquired into. It is not sufficient to say that the result is the same as if the petitioner had been discharged. That argument might be stretched to cover a case in which an accused has never been placed before a Magistrate at all. Clearly the mere fact that an accused has not been charged with an offence is in itself insufficient At least the Magistrate must consciously do something or make some order which shows that in his opinion, on the materials before him, the accused should not be charged with, or tried for, that offence.
11. Prima facie, therefore, as Section 436 is worded, I should hold that the petitioner was not discharged either properly or improperly in respect of the offence non-alleged under Section 467 and that the learned Sessions Judge had no power to direct his committal, or to order a further inquiry under proviso (b).
12. The learned Pleader for the petitioner referred to the decision of this Court in the case of Baijanath Pandey v. Gauri Kanta Mandal 20 C. 633 : 10 Ind. Dec. (N.S.) 427. decision which Las been followed in Madras Queen-Empress v. Hanumantha Reddi 23 M. 221 : 2 Weir 543 : 8 led. Dec. (N. S.) 560. Those cases, no doubt, support the view which I have expressed, but they go further than is necessary in the present case. In both cases the Magistrate had taken action which amounted to a refusal to charge the petitioner with the offence exclusively triable by the Court of Session, in respect of which the Sessions Judge had afterwards directed a committal. Moreover, Hanumantha's case (2) was overruled and Baijanath Panders case (1) 20 C 633 : 10 Ind. Dec. (N. S.) 427. was dissented from, by a Fall Bench of the Madras High Court in Krishna Beddi v. Subbamma 24 M. 136 : 2 Weir 544. There the Magistrate refused the request of the prosecution that he should frame a charge under Section 477 of the Penal Code and acquitted the accused on certain other charges. His order refusing to frame a charge under Section 477 was held to in substance an order discharging the accused in respect of the offence alleged under that section. In cases arising under Section 437 of the Criminal Procedure Code it has been similarly hold in this Court that an order though not in terms of an order of discharge may amount to such an order see Ajab Lal Khirher v. Emperor (4) 32 C. 783 : 9 C. W. N. 810 : 2 Cr. L. J 524.
13. The cases of Queen-Empress v. Gundya 13 B. 502 : 13 lad Jun 469 : 7 Ind. Dec. (N. S.) 333. and King Emperor v. Ayyan 24 M. 675 : 2 Weir 699. which were also cited before us, are not precisely, in point. They show, however, that the proceedings of the Magistrate were not void under Section 530 (p) of the Criminal Procedure Code.
14. For present purposes it is sufficient to say that the Magistrate made no order which was either in terms or in substance an order of discharge, and that the learned Sessions Judge, therefore, had no power to direct the petitioner's Committal to the Sessions Court for trial. In that view the Rule must be made absolute and the order of the Sessions Judge must be set aside.
15. As at present advised, I am inclined to hold that the Magistrate's order acquitting the accused of an offence under Section 465 of the Indian Penal Code is tantamount to an order discharging the accused of the graver offence in respect of the same document punishable under Section 467. That no charge was framed and that the Magistrate was in fact not moved to frame a charge under the graver section, I am inclined to think is immaterial. I, therefore, reserve to myself the right at a fitting opportunity to refer to a Full Bench the question whether the case of Baija-nath Pandey v. Gauri Kanta Mondal (1) was rightly decided. Meanwhile in the present case I assent to the order proposed by my learned brother, and I do so all the more readily as in view of the provisions of Section 503, Sub-section (4), of the Code of Criminal Procedure it appears to be open to the Crown or to the complainant to take such further action as their respective legal advisers may deem appropriate.