1. These two rules were issued calling upon the opposite party, one Nabin Chandra Hur, to show cause why two orders made by the learned Additional Sessions Judge of Sylhet directing tie Magistrate to commit the petitioner to the Court of Session for trial should not be set aside. The petitioner is a clerk working in the Treasury in the District of Sylhet. Defalcations in stamps were discovered and it is the prosecution case that it was the petitioner who was responsible. They further alleged that in order to cover up his crime he made false entries in certain monthly returns known as plus and minus memos. He was put on his trial before a First Class Magistrate who framed three charges against him under Section 409, Indian Penal Code. In the course of the trial he made an application to the Court of Session and the learned Sessions Judge directed the Magistrate to commit him for trial. The first point to notice is that this order of the learned Judge is entirely without jurisdiction. All he could do was to make a reference to this Court if he thought that an interference was necessary. He had no power himself to make such an order.
2. The result of his irregular action was, however, to deprive the petitioner of an opportunity to move this Court directly. It was accordingly contended on his behalf that we ought to decline to interfere with the order, because it was a proper order and that we should discharge the Rules on that ground. The reason that led the learned Judge to make that order is that he thought that in making false entries in those plus and minus memos the petitioner was guilty of an offence punishable under Section 218 Indian Penal Code. Now it seems to us that it would be very difficult to say that these two different offences were committed in the course of the same transaction and, unless they were a joint trial would be without jurisdiction. If the petitioner really desires to be tried separately by the Court of Session on a charge which the prosecution did not wish to press against him, he may, if he likes, after the present trial is ower, make an application to that effect.
3. Then in the second place the order of the learned Judge appears to us to be a thoroughly ill-advised order. The charge was framed on June 19, 1937. It never entered the head of the petitioner that he ought to be committed to the Sessions. On the contrary the case was heard on no fewer than 13 days and it was only when the prosecution case was completely closed that the present application was made. We are certainly not prepared to give effect to such a belated prayer. These. Rules are accordingly made absolute. The orders of the learned Sessions Judge are set aside and we direct the Magistrate to proceed with the trial from the point which he has already reached.
4. I agree.