1. This is a reference made by the learned Sessions Judge of Noakhali under the provisions of S.438, Criminal P. C, in which he recommends that the order of the Magistrate committing four persons to the Court of Session for trial under Sections 379,325,323 and 147,I. P. C, should be quashed or such other orders made as the Court thinks fit. The reference arises from a case of rioting in connexion with a certain plot of land which was claimed by two different parties. A quarrel ensued between them, in the course of which one member of the party now committed to the Court of Session was killed and another injured. Two counter cases were instituted, one of which was committed to the Court of Session and tried out. The present case against the party who figured as the complainant's party in the first case has also been committed to the Court of Session, and the learned Judge recommends that that order should be quashed.
2. The grounds on which the learned Judge makes this recommendation are, first, that the committing Magistrate was competent to try the case himself and inflict adequate punishment; secondly, that the mere fact that the case has been committed to the Court of Session is no ground whatever for committing the cross case where the offence involved in the cross case can be tried and adequately punished by a first class Magistrate; and thirdly, that the procedure adopted tends to over-burden the Sessions Court unnecessarily. Now, a commitment to a Court of Session, made by a competent Magistrate can only be quashed on a point of law, and the only point of law suggested for our consideration in this reference is that the committing Magistrate did not exercise proper discretion. The question whether a case should be tried by a Magistrate having jurisdiction or by a Court of Session ultimately depends upon the character of the offence charged and upon the question whether a Magistrate empowered to try such a case can, in the event of conviction, inflict an adequate sentence. The question of adequate sentence, again, cannot be properly decided without going into the evidence in a particular case and must depend ultimately on the gravity of the offence as disclosed in the record. Sitting as a Court of revision, we do not enter into the facts of a particular ease, and we see no reason to depart from that well established practice. The result is that we are unable to hold that the learned Magistrate failed to make proper use of his discretion in committing the present case. In the result the order complained of must stand and the trial proceed. The reference is rejected.
3. I agree.