D.B. Lal, J.
1. This Rule in revision has been obtained by the State against the order dated 23-3-1973 of Shri N.S. Shandil, Additional Sessions Judge, Nurpur, whereby he has dropped a charge under Section 302 and in its place has substituted a charge under Section 304 of the I. P. C.
2. Facts giving rise to the prosecution case are, that the deceased Baderi Dass was the land-owner and had given permission to one Baij Nath to cut grass from his land. On 15-3-1972, accordingly, Baij Nath was cutting the grass, but the accused Gautam Das appeared and forced entry upon the land. He started cutting some vegetable crop growing thereon. Upon that, Pushpa Devi and Chand Rani who are the daughters of Baderi Dass, objected but the accused Gautam Dass started abusing them. The two ladies sent for Baderi Dass (deceased) who came along with one Subhash a relation of his. The accused Gautam Dass flew into a rage and addressed Baderi Dass and others by saving that whoever would enter the field would be killed by him. He had also stated that he was actually waiting for Baderi Dass to come and object, so that he could deal with him. Saying so, Gautam Dass whipped out a knife and started giving blows to Baderi Dass and others. The injury given to Baderi Dass was on his thigh which actually cut the left femoral artery and vein resulting in his death within half an hour. The accused Gautam Dass also gave stab injury to Pushpa Devi and Chand Rani and these injuries are to be found on the left side of their chest respectively. However, these two ladies have survived and the charge against the accused, so far as they are related, is under Section 307, I.P.C. The learned committing Magistrate charged the accused Gautam Dass under Section 302, I.P.C. for having caused the death of Baderi Dass. The post-mortem examination of the body of Baderi Dass had taken place and Dr. P. C., Kaistha who was examined in the Court stated that the injury caused was sufficient in the ordinary course of nature of cause death. Accordingly the accused Gautam Dass was committed to the Court of Session to stand trial for the offences under Sections 302 and 307 of the I. P. C
3. When the Sessions trial was commenced by the learned Additional Sessions Judge; an application was moved before him under Sections 226 and 227 of the Code of Criminal Procedure and as a result to that application, the learned Sessions Judge dropped the charge under Section 302, Indian Penal Code and substituted the charge under Section 304, Indian Penal Code in respect of the deceased Baderi Dass, However, he has retained the charge under Section 307, Indian Penal Code. The State has taken exception to this discharge of the accused under Section 302, Indian Penal Code and has come up in revision.
4. The proceedings before the learned Magistrate while he framed the charge was one under Section 207-A of the Code of criminal Procedure, Within Sub-section (6) of Section 207-A, the accused was to be discharged for a particular offence if in the opinion of the Magistrate there was no evidence to disclose a ground for committing the accused person for trial. Otherwise the Magistrate, if he is of the opinion that the accused should be committed for trial, he has to frame a charge under his hand, declaring with what offence the accused is charged. Therefore, in order to drop the charge, a prima facie finding had to be given by the Magistrate that there was no ground for the accused to have been committed with that particular offence. When the evidence referred to in Sub-section (4) of Section 207-A has been taken and the Magistrate has considered all the documents referred to in Section 173 and examined the accused (if necessary) and has given the prosecution and the accused an opportunity of being heard, the Magistrate has also to see if such evidence and documents disclose any ground for committing the accused for trial. If there are any grounds for committing, he cannot consider whether they are sufficient or not, but must commit the accused for trial. It is only when there are no grounds at all for committing that the accused can be discharged. One has to see as to whether the Magistrate had acted in accordance with the requirement of Section 207-A and the enquiry by the learned Sessions Judge should have been directed to that end in view. Instead, as manifest, he has scanned through the evidence and has considered it on merit in order to hold, although prima facie, that the offence of murder was not made out and he has taken exception to the only circumstance that the stab wound was given on the thigh of the deceased. The learned Advocate-General contests that this was a faulty procedure and should not have been adopted by the learned Sessions Judge. When the Magistrate found under Section 207-A of the Code that the accused should not be discharged under Section 302 as some grounds were made out before him for his indictment under that charge, there was no jurisdiction assigned to the learned Sessions Judge to have considered the evidence on merit, even prima facie, so that he could take a different view. The learned Advocate-General submits that the Court has dropped the charge under Section 302 and has substituted another charge for a different offence, namely culpable homicide not amounting to murder. This the learned Sessions Judge could not do under Sections 226 and 227 of the Code. When an accused person is committed to take his trial on specific charges before the Sessions Court, the judge has no power under Section 226 to expunge a charge before calling on the accused to plead to it or to quash a charge framed by the committing Magistrate and substitute a new charge. However, if the charge framed by the Magistrate is imperfect or erroneous the judge may alter or add to the charge having regard to the offences disclosed in the evidence recorded by the Magistrate. Even subsequently as the trial proceeds, and evidence is recorded if in the opinion of the judge an offence different in character is made out for which the accused should have been committed, the judge may alter the charge or add to the charge and include the offence so disclosed. The material on which the judge acts under Section 226 is the evidence recorded by the Magistrate and under Section 227 is the evidence recorded by himself in the course of the trial. Therefore, when the learned Sessions Judge dropped the charge under Section 302 and framed another charge for a distinct offence, he could not in fact do that under Section 226 and the stage under Section 227 had not till then arrived before him. In my opinion, therefore, neither it was a case of alteration of charge nor the situation was amenable to Sections 226 and 227 of the Code.
5. In Emperor v. Huseinalli Vilayat-alli AIR 1942 Bom 212 : (1942) 43 Cri LJ 773 a charge was withdrawn under Section 226 on the ground that there was no-evidence to go to jury. The practice was deprecated and considered illegal. It was held that when the Magistrate comes to the conclusion that an offence has been committed and he frames a charge accordingly, it is not open to the Court of Session to withdraw the charge on the ground that there is no evidence to go to the jury and therefore the charge would fail. There is a distinction between substitution of a new charge for an old one and the withdrawal of an old charge coupled with the framing of a charge for another offence. Under Sections 226 and 227, a new charge cannot be substituted when the committing Magistrate has thought it proper on merit to frame a charge for some distinct offence (see Rex v. Alimuddin : AIR1950All77 . In case the learned Sessions Judge retains the charge under Section 302, Indian Penal Code, it would not be difficult for him to convict the accused under Section 304, Indian Penal Code which is a charge for a minor offence vice versa is of course not permissible. It would, of course, be on grounds of expediency, but as I have stated above, the dropping of the charge under Section 226 was not justified and the learned Sessions Judge in fact exceeded his jurisdiction when he did that.
6. Prima facie the events which governed the case, in my opinion, justified the Magistrate to have framed the charge under Section 302 for the death caused to Baderi Dass. The accused had extended threats and even gave out, as stated by the witnesses, that he would kill anybody who entered the field. Similarly he also stated that he was waiting for the victims and had admittedly taken out a knife and had given stab wounds. The injuries caused on Pushpa Devi and Chand Rani were decidedly on a vital part of their body, although these were not effective. The doctor who performed the postmortem examination prima facie stated that the injury caused to Baderi Dass was sufficient in the ordinary course of nature to cause death. In these circumstances, the learned Magistrate was justified to frame a charge under Section 302 for the death of Baderi Dass and under Section 307 for the injuries caused to Pushpa Devi and Chand Rani. The charge under Section 302 could not be dropped or substituted by a new charge for minor offence under Section 304, for the reasons stated above, under Section 226 of the Code. This would afford sufficient ground for interference by this Court. I am not in agreement with the approach and the final conclusion of the learned Sessions Judge. This would be a case of improper exercise of jurisdiction and miscarriage of justice is likely to emanate.
7. The revision petition is, therefore, allowed and the order of the learned Additional Sessions Judge dated 23-3-1973 is set aside. The accused will stand charged under Section 302, Indian Penal Code for the death of Baderi Dass and he shall be tried by the Court of Session in accordance with law.