P L D 1964 Dacca 285 (PLP)

"If the order had run in that form, I do not see how it could be said that the Sessions Judge would not have had jurisdic tion under section 436, Criminal Procedure Code, to order him to be committed for trial upon the matter of which he had been, in the opinion of the Sessions Judge, improperly dis charged, i. e., as regards the offence under section 477, Indian Penal Code. But the mere omission of the Magistrate to say `I discharge the accused so far as the offence under section 477, Indian Penal Code is concerned', cannot alter the essential character of the Magistrate's proceedings."

11. The Full Bench agreed with the judgment of Mr. Justice Benson and made the following observations: Chapter XVIII relates to enquiries into cases triable by the Court of Sessions or High Court. The primary object of section 209 is to make provision for the procedure in such cases. If in the opinion of the Magistrate, there is no evidence to warrant a charge for an offence exclusively triable by a Court of Sessions, he may `discharge' the accused in respect of the alleged offence and having done so, may proceed as regards the minor Offence or offences under Chapter XXI or other appropriate Chapter. Magistrate cannot proceed to act under the latter part of subsection (1) of section 209 until he has `discharged' the accused under the former part of the subsection. This is the course which the Magistrate adopted in the present case. "We think the Sessions Judge had jurisdiction to make the order under section

436. We agree with the judgment of Benson, J . . . The point came to be considered in the case of Sheo Narain Singh and another v. B. Radha Mohan (A I R 1919 All. 66). In that case the accused was placed before a Second Class Magistrate for trial on charges under sections 307 and 323 of the Penal Code. The learned Magistrate framed a charge under section 323 only and directed the accused to enter on his defence. The District Magistrate directed a further inquiry in respect of the charge under section

307. It was held that the order of the Magistrate framing a charge under section 323 amounted to a discharge of the accused under section 307 and that, therefore, the District Magistrate had power to direct further enquiry in respect of the latter offence.

12. This view also finds support in the cases of Sukhala and another v. Emperor (A I R 1934 All. 141) wherein Kendall, J., observed as follows: "I have already said that an order either of acquittal or conviction, cannot be held to carry with it the implication that the accused has been discharged of all other conceivable offences, and there is the authority of the Calcutta High Court for holding that where there is nothing in order of the Magis trate to show that he has considered whether the major offence has been committed or not, it ought not to be held that an order of discharge of the major offence is implied. In the Calcutta case, however, as I have remarked, there was apparently no complaint of major offence, and that the first occasion on which the question of whether the major offence had been committed was considered, was when the matter came before Sessions Judge. In the present case and in other Allahabad case to which I have referred, there was before the Magistrate a complaint or a report to the effect that the major offence had been committed. It is true that there is very little evidence in the present case to show that the prosecution pressed for a charge under section 307 or section 308 nevertheless the offence was on the charge‑sheet forwarded by the Police and it would be impossible to hold that there was no case of attempted murder before the Magistrate for decision or inquiry. When the matter came before him he had to decide whether to frame a charge under that section and to commit him for trial or not, and as he did not frame a charge, there can be no ex planation of what happened to the complaint or the report unless there was an implied order of discharge. This appears to be the opinion expressed in the decision of the Full Bench of the Madras High Court to which I have referred, and I am prepared to follow that as it is undoubtedly in con sonance with the trend of the other decisions that have been referred to in this case and is not really inconsistent with the decision of the Calcutta Bench . . . ." The matter again came to be considered by the Madras High Court In re : Kathari Lakshmayya and others (A I R 1943 Mad. 459) In that case also on a charge‑sheet filed by the Police for an offence under section 307 of the Penal Code, the Stationary Sub‑Magistrate held an enquiry and decided no case was made out under section 307 and framed a charge under sections 147, 323 and 324, Penal Code, and converted the case into a calendar case. In revision the Additional District Magistrate directed the commitment of the accused to the Court of Sessions. It was held that the Additional District Magistrate was competent to pass the order and direct the commitment of the accused of the Sessions as otherwise the order of the Stationary Sub‑Magistrate amounted to the discharge of the accused of the offence under section 307 and could be set aside only by the Additional District Magistrate.

13. In the case of Ajab Lal Khirher v. Emperor (I L R 32 Cal. 783), it was held inter alla that the order of the Magistrate refusing to issue a process on the ground that it was not necessary to take further action amounted to a discharge.

14. In the case of In re: K. Y. M. Parameswayya (A I R 1949 Mad. 430), it was held that where an accused was charged under section 307 of the Penal Code, but the Magistrate framed a charge under section 337, and did not frame one under section 307, Penal Code, his action amounted to a discharge of the accused of an offence under the latter section. The preponderance of the authorities on the point clearly indicates that an omission to frame a charge under a certain section may amount to a discharge when the Magistrate has applied his mind and has consciously refrained from framing a charge under that section. On 7th January 1960, the Magistrate framed certain charges other than a charge under section

395. Dissatisfied with that order an application was made before the Sessions Judge who remanded the case in the following terms "The Magistrate should consider whether prima facie case under section 395, P. P. C., besides under section 325, P. P. C. has been established against the accused or some of them. He should also consider under section 207, Cr. P. C. whether even though the case may not be one exclusively triable by the Court of Sessions in his opinion, this is a case which ought to be tried by the Court of Sessions." After his attention was thus drawn to section 395 specifically, the learned Magistrate came to the following conclusion on 6th March 1961. "6‑3‑

61. Further P. Ws. have been obtained to be examined. I do not find any improvement in the evidence already recorded sufficient material to commit the accused, and fresh charge is framed against the accused persons, adopting the same charges. The accused persons pleaded not guilty." It will, therefore, appear from the order of 6th March 1961, that the omission to frame a charge in the present case has been done by the learned Magistrate by a conscious act. Although he did not say in specific terms that he discharged the accused persons under section 395 of the Penal Code, his order amounted to a discharge under that section.

15. From a reading of the Full Bench decision of the Madras High Court referred to above it appears that the learned Judges have indicated that Chapter XVIII of the Code of Criminal Procedure relates to enquiries into the cases triable by the Court of Sessions or the High Court and a Magistrate in dealing with such cases can either discharge or commit, and, therefore, it may be deduced from that decision that he cannot adopt a third course, and if he fails to commit an accused person, he discharges him while acting under the said Chapter XVIII. In this observation something more than an implied discharge can be read because the learned Judges appear to think that not making of an order of commitment amounts to making an order of discharge, and speaking with respect, I agree with the views as indicated above.

16. Apart from that even applying the principles laid down by Richardson, J., there has been a discharge in this case for omission to frame a charge under section 395 of the Penal Code even when the attention of the Magistrate was specifically drawn to it.

17. The learned Additional Sessions Judge after an elaborate discussion of evidence for the purpose of framing a charge under section 395 of the Pakistan Penal Code, has come to the following finding: "I have already endeavoured to show that on the very first occasion all the P. Ws. made out a case of dacoity, but it is not at all clear or understood why the learned Magistrate failed to frame the charge under section 395 of the Pakistan Penal Code and commit the accused to the Court of Sessions." It has not been urged before me that this finding of the learned Judge is based on no evidence. Mr. Chowdhury has not shown that there is absence of evidence in support of the finding of the learned Judge. The learned Judge has, however, observed: "In my opinion the learned Magistrate ought to have been more careful and go through the evidence recorded by him."

18. Mr. Khan has drawn my attention to the evidence as recorded in the case in support of the finding of the learned Judge.

19. Mr. Chowdhury contends that an order of discharge made by a Magistrate should not be lightly interfered with, and he places his reliance on a decision of our Supreme Court in the case of Hari Ballav Shaha Roy v. Gopi Ballav Shaha and the Government of East Pakistan (P L D 1959 S C (Pak.) 347). Applying the principles laid down in that case by their Lordships of the Supreme Court, I must say that there is every justification for the learned Judge's interference with the order of the Magistrate. In delivering the judgment of the Court, his Lordship Shahabuddin, J. observed as follows: "To discharge this function the Magistrate has necessarily to appreciate evidence, but he must bear in mind the purpose of the enquiry is only to determine if there are sufficient grounds for making the accused stand a trial and not to decide about his guilt" It is further observed as follows: "He should discharge the accused even if in the evidence he comes to the conclusion that no Court or jury could reasonably be expected to convict the accused." It may at once be said that the learned Magistrate has recorded no such conclusion in this case.

20. In view of the pending trial, I must not be understood to say anything on facts one way or the other, but it is clear that the Magistrate did not apply his mind to the evidence led in the case. It was his duty to do so bearing in mind that the standards of weighing evidence for the purpose of commitment and for that of conviction are entirely different, and the observations of our Supreme Court referred to above give a clear guidance in the matter. In these circumstances, I am of opinion that there has been an improper discharge in this case, and the order of the learned Additional Sessions Judge calls for no interference, and Rule is accordingly discharged. Let the records of the case be sent down without delay for expeditious disposal of the case. S. Q./K. B. A . Rule discharged.