P L D 1967 Dacca 459 (PLP)

BAQUAR, J.‑Criminal Revision Case No. 69 of 1963 and Criminal Revision Case No. 80 of 1963 are being disposed of by this one judgment. Criminal Revision Case No. 69 of 1963 is directed against the order of the Sessions Judge directing the commitment of the petitioners numbering 16 to the Court of Sessions with the charge under section 147 of the Pakistan Penal Code against all the petitioner's and charge under section 307/109 of the Pakistan Penal Code against petitioner No. 1 and charge under section 307 of the Pakistan Penal Code against petitioner No.

2. The Magistrate having only framed charge under section 326/109, P. P. C. against petitioner No. 1 and under section 326, P. P. C. against petitioner No. 2 and under section 147, P. P. C. against all, the complainant moved the learned Sessions Judge resulting in the direction for commitment as stated above. The order sheet of the learned Magistrate dated 22‑9‑62 shows that the prosecution submitted a petition stating that the case made out against the accused was one under section 307, P. P. C. and that the accused should be committed to the Court of Sessions and the learned Magistrate fixed 26‑9‑62 for hearing defence and then fixed 4‑10‑62 on the prayer of the Court Sub‑Inspector for hearing. Finally on 6‑1C‑62 the learned Magistrate passed the following order, which needs quoting in extenso: "6‑10‑

62. Heard Pleaders for both sides and C. S.

1. Pro secution argued the charge against accused Aflatun would be one under section 307, P. P. C. and under section 307/109, P. P. C. against accused Abdur Rahim and under section 147, P. P: C., against all. It means to say that while accused Aflatun went to commit murder and that his father Abdur Rahim went to abet that offence but other accused went there to commit rioting with the common intention of taking over forcible possession of the accused's (sic) stall. Prosecution thus confuses the intention of the accused. Accused Abdur Rahim and his son Aflatun are the persons interested in the tea‑stall of the accused (sic). Once it is said that they went there along with others being variously armed with gun, lathis etc., to oust the injured from the shop and to take over forcible possession of the same. At the same breath it cannot be said that they went there to commit murder of the accused (sic). F. I. R. and charge‑sheet shows that accused committed the offence with the intention of taking over forcible possession of the accused's (sic) stall. The injured and his father and other P. Ws. in their examination‑in‑chief have deposed to the same effect. The charge‑sheet also has been submitted under section 326, P. P. C. In the face of all these 1 am unable to frame a charge under section 307, P. P. C. against any of the accused because the main ingredients‑intention or knowledge is wanting. The petition for framing a charge under section 307, P. P. C. and for committing the accused is therefore rejected. Charge framed against accused under section 326, P. P. C. against Abdur Rahim under section 326/109, P. P. C. and against all the accused under section 147, P. P. C. to which they pleaded not guilty. It is also pointed out that the case against accused if proved, would warrant heavier punishment than this Court is empowered to inflict. At this stage of the case it is not possible for the Court to judge the merit of the case and punishment which is required to be inflicted. After the close of the trial and before judgment the Court will certainly commit the accused to Sessions if evidence on record warrants heavier punishment. Hence I do not find sufficient grounds from deviating from warrant procedure." Relying upon section 437, of the Criminal Procedure Code the learned Sessions Judge passed the following order which may also be quoted in extenso: "I perused the order passed by the learned Magistrate and the evidence on record. It is seen from the evidence on record that the accused Aflatun fired upon Yar Muhammad from close range with his gun. So the prosecution's suggestion that the intention of the accused to murder Yar Muhammad was there, cannot be ruled out. In the circumstances, the learned Magistrate was not right in observing that when the accused formed an unlawful assembly with the common object of taking possession of the stall, they cannot have the intention to murder Yar Muhammad. But the learned Magistrate should remember that the intention to murder a man may develop at the spur of the moment without the knowledge of the other members of the unlawful assembly. Moreover, the question of intention is to be decided by the Sessions Court at the time of trial and the learned Magistrate cannot be allowed to usurp that power of Sessions Court by giving a decision on the point of intention at this stage. The learned Magistrate is also wrong in law in observing that when the F. I. R. shows that the accused committed the offence with the intention of taking forcible possession of the stall and when the charge‑sheet has been submitted under section 326, P. P. C. he is not in a position to frame charge under section 307, P. P. C. I do not understand whether he should only ditto the finding of the Police. As a Magistrate, 1st Class he has to exercise his own discretion in framing charge on reference to the facts and evidence on record. The learned Magistrate would do well if he exercised his own intelligence and judgment in framing charge and deciding the case having regard to the evidence on record and not on the charge‑sheet submitted by the Police. In this particular case, I find that the evidence discloses a prima facie case against the accused Aflatun under section 307, P. P. C. and against accused Abdur Rahim under section 307/ t 09, P. P. C. and against all the accused under section 147, P. P. C. The learned Magistrate is, therefore, directed to commit the accused persons to the Court of Sessions with the charge under section 147, P. P. C. against alt the accused and under section 307 P. P. C, against accused Aflatun and under section 30710'9, P. P. C. against accused Abdur Rahim." It will be noticed that the learned Magistrate did not pass any discharge order as to the offence under sections 307 and 307/ 1 09, P. P. C. although he refused to frame a charge thereunder. He had also kept the door open for commitment if the evidence warranted heavier punishment although he had made up his mind to follow the warrant procedure. It appears further that the learned Magistrate had adduced cogent reasons for the stand he took into the matter. In Criminal Revision Case No. 80 of 1963 the same learned Sessions Judge on the same date by virtue of his powers under section 437 of the Criminal Procedure Code directed the Magistrate to commit all the 11 petitioners under sections 447 and 143, P. P. C. and petitioner No. 9 under section 436, P. P. C. and petitioner No. 10 under section 436/109, P. P. C. \The learned Magistrate had framed charges under section 435/109, P. P. C. against petitioners Nos. 1 to 8 and petitioners Nos. 10 and 11 and a charge under section 435, P. P. C. against petitioner No.

9. The learned Magistrate's short order runs thus: "30‑11‑

62. All the 11 accused persons are present. Perused record and framed charge under section 435, P. P. C. against accused Mihir Baran Singh and under section 435/109, P. P. C. against the remaining 10 accused persons. Fix 14‑1‑63, 15‑1‑63 and 16‑1‑63 for cross‑examination of P. Ws. Accused as before." In this case it will be noticed that there was no petition by the prosecution for commitment before the learned Magistrate as in the other case and the case was actually in a very embryonic stage. The relevant part of the Sessions Judge's order is as under: "I perused the evidence on record and find that the evidence shows that the dwelling huts and cow‑sheds of the complainant and his brother were gutted by lire which was set on the haystack by accused Mihir. There is also evidence to the effect that Rabindra gave order to set tire. There is also evidence that the other accused came with Mihir and Rabindra in a body armed with various weapons and resisted the people who came to extinguish the fire. So, the evidence would rather justify framing of charge under section 436, P. P. C. The learned Magistrate, therefore, was not correct in framing charge under section 435, P. P. C. and 435/109, P. P. C. In the above view of the case, the learned Magistrate is directed to commit the accused Mihir Baran Singh to stand his trial to th: Court of Sessions under section 436, P. P. C. and accused Rabindia Kabiraj under section 436/169, P. P. C. He is also directed to commit all the accused under sections 447 and 143, P. P. C." Mr. Mozammel Huq, learned Advocate for the petitioners in these two revision cases has seriously challenged the propriety and legality of both these orders of the learned Sessions Judge, while Mr. B. N. Choudhury, learned Advocate for the State has sought to uphold the above orders. Quite a large number of decisions have been placed before us by both sides, and we propose to consider those here after. It may be mentioned that no decision of our jurisdiction except one Single Bench decision of the Dacca High Court has been placed before us and we have thus to depend wholly on decisions of Indian jurisdiction. The point involved in these two revision cases is the same, namely, the scope and compass of section 437, of the Criminal Procedure Code, particularly its main part. These two matters which originally appeared before a Single Bench of this Court being not free from difficulty and having regard to the importance of the question involved have been referred to this Division Bench by the learned Chief Justice at the instance of the learned Single Judge. The intricacy of the subject‑matter called for a fuller bench in the opinion of the learned Single Judge and we find that some High Courts have taken the course of referring the point to Full Bench. The question before us generally stated is: Does mere non‑framing of charge with regard to an offence, which is exclusively triable by the Court of Sessions, by a Magistrate holding preliminary enquiry under Chapter XVIII amount to a discharge or it has the effect of a discharge sufficient to attract the main part of section 437 of the Criminal Procedure Code. More specifically in this particular case the question is: If a Magistrate proceeds with a case under Chapter XXI as a warrant case to dispose of the case himself though there may be materials for commitment, without expressly discharging the accused of an offence or offences exclusively triable by Court of Sessions or if the learned Magistrate keeps altogether mum about the nature of the materials and allegations that might lead to commitment, so as to justify the disposal of the case by himself, does that amount to improper discharge in terms of section 437 of the Criminal Procedure Code so as to enable the Sessions Judge to order commitment. The two Full Bench decisions placed before us, namely, the case of Nahar Singh v. The State (A I R 1952 All. 231) and In re: Nalla Baligadu and others (A I R 1953 Mad. 801), which will engage our attention later, it may be pointed out at the outset, relate directly to discharge arising in circum stances when a Magistrate was proceeding under Chapter XVIII and not under Chapter XXI of the Criminal Procedure Code as in the two cases before us, in none of which it may also be noted, there was any discharge under section 253 of the Criminal Procedure Code. Now what is, improper discharge? We need not dilate upon what is 'improper'. In each individual case it is for the Sessions Judge or the District Magistrate to consider it subject to their considering the case as exclusively triable by the Court of Session. The difficulty is about the significance of the word 'discharge'. Must it be express discharge in express terms to attract section 437, or would it be sufficient to attract the section even if the discharge was only by inference or by implication? That is the real problem facing us. Section 437 of the Criminal Procedure Code is in these terms "

437. 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 of District Magistrate, improperly discharged: 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 show that some other offence has been committed by the accused, such Judge or Magistrate may direct the inferior Court to inquire into such offence." It may be noted that under the section the revisional powers of the Sessions Judge or District Magistrate are limited to such cases as are considered triable exclusively by the Court of Session. The section further indicates that this power can be exercised in two ways, namely (1) that as given in the case of tile main part to direct commitment or fresh inquiry where there has been an improper discharge of the accused and (2) that as given under proviso (b) to direct inquiry, which is not dependent upon any express and improper discharge. The main part is confined to the cases of express and improper discharge of the accused, the proviso is meant for other cases. It may be noted that in the case of express and improper discharge the power is fuller than in the case of proviso (b), which is to direct inquiry only, where there has been no such express and improper discharge. For the fuller power under the first part to come into play the sine qua non is express and improper discharge, while the power under the proviso (b) is not subject to any such condition. The Legislature seems to have assigned definite and separate purposes to the two parts of the section. The main part has been designed for clear cases of express and improper discharge of accused and the proviso (b) seems to have been designed as a safety valve for other cases. The very incorporation of proviso (b) seems to be indicative of the fact that the Legislature visualised cases other than those of express discharge as of different category from the category as covered by the main part. This distinction is made more manifest by the difference in the degree of the revisional power, in the case of the two categories, namely that of directing commitment in the one case and inquiry only in the other case. The position being such, the fuller powers in the main part can be exercised only when there has been strict observance of the requirements of this part, namely, that of there being an express and improper discharge. For cases not covered by the main part the only remedy is that given by proviso (b). The limits of the two parts being thus clearly set, it would be unwarranted and unjustified to over‑burden the main part, with purposes other than that for which it was solely meant, namely that of express discharge. Moreover, this kind of extension of the main part would render the proviso redundant and superfluous. When it is said that an accused person is discharged it means naturally that the case against the accused is over and he is a free man. So long as he is being tried by the Magistrate for some other offence he cannot be said to have been discharged and, therefore, in such case the question of his arrest would not arise. "May cause him to be arrested" appears after and only when "an accused person has been improperly discharged" which seems to mean that the power of arrest and order of commitment comes into play only after the accused person is out of Court having been improperly discharged by the Magistrate already of the whole case. The Sessions Judge can direct commitment upon 'the matter' which is single which agrees with the word 'such case', which again is singular, which means that when a case exclusively triable by the Court of Session has ended in a discharge which is regarded as improper discharge by him. The power of arrest is incidental to improper discharge. It does not seem to us to be merely enabling. Even if the expression 'may arrest' prima facie seems to be only enabling, to give full meaning to the Session as a whole this expression has to be treated as consequential and incidental to the high degree of power given in the main part of the section to the Sessions Judge. The powers of the Sessions Judge being such high it should ordinarily come into play only when the discharge is express in its terms. To give full meaning to each part of the section there does not seem to be any scope of "discharge by implication" in the main part of the section. Proviso (b) is the part meant for meeting cases where the discharges are not express and in those cases there can be no order for commitment or fresh inquiry but only inquiry. It may be mentioned that our observations particularly apply to cases in which only one offence is said to have been committed by the accused as in the case of Criminal Revision No. 69 of 1963 which is substantially a case of one offence. In the case of Criminal Revision No. 80 of 1963 also the accused was charged for one offence only, namely under section 435, Pakistan Penal Code. There could not in this case be a discharge in the middle of the trial as it might be in a case where the accused was tried for two or more distinct offences. The non‑framing of charges under certain sections by itself may only indicate discharge on those counts but the discharge contemplated by section 437 is the very opposite of implied discharge and thus does not include a discharge arising merely from non‑framing of a charge under one section, when a charge under another section is framed. We feel that the fundamental principle is that not only each part of the section has to live and serve a definite purpose but also that conflict should be avoided between one section and another as far as possible. The effort of law always is to give as precise connotation ask possible to the words used and this is greatly achieved when the letter of the expression is literally followed. The wordings of section 437 being free from any ambiguity we cannot add or subtract from their plain significance. Our first re‑actions to the question mooted are as above and now it is for us to proceed with the task of examining the decisions laid before us by both sides. The weight of authority on both sides being almost equal we propose to associate ourselves generally with that line which is more reasonable and more consonant and consistent with the Criminal Procedure Code as a whole and as one integrated system, remembering all the time that each and every section of the Code has a definite purpose to serve and that in interpreting them conflict should be avoided as far as possible. Mr. Mozammel Huq for the petitioners associating himself with Allahabad Full Bench view has relied on A I R 1952 All. the Full Bench decision already mentioned; A I R 1954 All. 163; A I R 1953 Cal. 567; 1941 Oudh 409 and 1941 Mad.

582. The view on this side is that for the main part to be attracted there must be express discharge. Mr. B. N. Chowdhury representing the Madras view has relied on the decision of the Madras Full Bench mentioned before, namely the decision reported in A I R 1953 and also on the decisions reported in 1920 Mad. 94; 24 Mad. 136; A I R 1934 Lah. 164 (Lahore of undivided India) Muhammad Ishaque v. Anu Mia (P L D 1962 Dacca 301); a Single Bench decision of this Court. It was held in the Full Bench decision reported in A I R 1952 All. 231 that where a person is accused by the complainant for a major offence, (e.g., under section 304, Penal Code) and the Court frames a charge for a minor offence (e.g., under section 304‑A, Penal Code) it does not amount to a discharge because the case is proceeding against him on the same facts and the Court of revision is not competent under section 437 to direct commitment of the accused to the Session in respect of the major offence. But if in the course of the trial it appears to the Magistrate at any stage of the proceedings that the case is one which ought to be tried by r the Court of Session, then he is at liberty under section 347 to commit the accused. Malik, C. J., in that case held that a mere non‑framing of a charge by a Magistrate does not necessarily mean the discharge of the accused so long as the Magistrate can under sections 226 to 230, Criminal Procedure Code frame the charge which he had not considered necessary to frame at the earlier stage, and that where a person is accused of only one offence his discharge should bring about a complete termination of the proceedings against him. The facts in short were that the applicant was prosecuted by the Police under section 304 of the Penal Code for causing the death of a barber by shooting at him. The learned Magistrate commenced proceedings under Chapter XVIII of the Code. He recorded the evidence for the prosecution and also defence evidence and then framed a charge under section 304‑A of the Penal Code. He did not pass any order explaining why the charge was framed under section 304‑A, Penal Code and not under section 304, Penal Code. Son of the deceased barber went up in revision against the framing of the charge and the learned Sessions Judge passed the order under revision treating the non‑framing of a charge under section 304 of the Penal Code as discharge of the applicant. The trial of the applicant under section 304‑A of the Penal Code was pending in the Court of the learned Magistrate on the date on which the learned Sessions Judge passed the order and the trial was pending before the Court of Session when the revision came to the High Court. There was only one offence alleged against the applicant, namely, that of causing the barber's death by shooting. The Full Bench's view after elaborate consideration of the different sections of the Criminal Procedure Code was that the applicant was never discharged and that the learned Sessions Judge was not empowered by section 437, of the Criminal Procedure to order commitment of the applicant. In that view of the matter the Full Bench set aside the order of the Sessions Judge as also the commitment order by the learned Magistrate and the Full Bench further directed that the charge framed under section 304 of the Penal Code by the learned Magistrate should be cancelled and that the Magistrate should proceed with the applicant's trial on the charge of section 304‑A of the Penal Code. It was also mentioned that the High Court order would not affect the learned Magistrate's power under section 347 of the Criminal Procedure Code. The important and relevant observations as appearing in this Full Bench decision may be quoted hereunder: "The learned Magistrate proceeded as laid down in Chapter XVIII; but even if he be said to have proceeded as laid down in Chapter XXI, he has not discharged the applicant within the meaning of section 253 for the simple reason that he has found some case against him. In a warrant trial an accused would be discharged under section 253 only if no case of any kind, which would warrant his conviction, has been made out. What kind of case is made out does not matter in the least. So long as any kind of case which would warrant conviction is made out in the view of the Magistrate there can be no discharge. Here the learned Magistrate thought that an offence of section 304‑A bad been made out against the applicant and consequently be had not been discharged. The applicant was not exonerated from accusation or blame exculpated or excused. He was not freed from any liability, He was being tried for the act and he was being tried not. withstanding the fact that he was being tried for a less severe offence than that for which he was put on trial, that he was being tried before the learned Magistrate himself instead of before a Sessions Court and that the maximum punishment to which he was liable was less than the maximum punishment to which he would have been liable if committed. He was not released from custody or liberated. Even if he was on bail from before, or had been released on bail by the learned Magistrate after being charged under section 304‑A, that did not amount to his release from custody or liberation; he was still under an obligation to be present in the Court whenever called in the case. He was therefore, not discharged within the meaning of the word as given by the above mentioned authorities. The Code does not contemplate an implied discharge at all. Subsection (2) of sections 209 and 253 allow a Magistrate to discharge accused at any previous stage of the case if, for reasons to be recorded, he considers the charge to be ground less. Obviously the discharge permitted by the subsections could be only an express discharge; no accused can be deemed to have been discharged at a previous stage of the case. Section 209 requires the Magistrate to record his reasons before discharging an accused; this also shows that there cannot be an implied discharge. If the reasons are recorded, the discharge would be an express discharge. Under the Code there can be no discharge if proceedings still continue against the accused in the case. One cannot imagine any case under the Code in which an accused is discharged and is still being proceeded against (in the same case). The provisions of section 236 is of a particular importance; it is that if a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with all or any of such offences, or, in the alternative. Thus if he does an act which results in some body's death he may be charged in one trial with offences of sections 304 and 304‑A, Indian Penal Code or with section 304, I. P. C. only or with section 304‑A, I. P. C. only. What is noteworthy is that he may be charged with even one of the several offences which are constituted by the facts proved. It is not necessary to charge him with all possible offences constituted by the facts proved. So if he is charged with one offence it cannot possibly be said that he is discharged. Even if he is charged with only one offence he can be convicted of whatever offence which, at the end of the trial, is proved to have been committed; this is what section 237 lays down. It uses the words `for which he might have been charged' and not `of which he was discharged'. An express order of discharge is necessary because it terminates the proceedings against the accused in respect of the particular matter. When that is the only matter for which he was tried, there will invariably be an express order. It may be wrongly worded, but the order is bound to be there. Even in a joint trial for two or more offences there ought to be an express order of discharge if the Magistrate finds that one or more of the offences are not proved. If a man is tried for two distinct offences and there is no evidence to prove one, the Magistrate should while framing a charge in respect of the other pass an order of discharge in respect of the former. If he simply frames a charge without passing an express order of discharge he commits an irregularity, and the accused would be deemed to have been discharged in respect of the former offence. I think this is the only case in which discharge can be implied." So far as the admission of implied discharge as contained in the above quotation, our view is that when a man is accused of two distinct offences and the Magistrate frames a charge for one of those offences without passing an express order of discharge with regard to the other, even in such a case there is no implied discharge of the former offence as can be recognised under the main part of the section, for the reason that, discharge contemplated by section 437 does not include not framing a charge under one section, when a charge under another section has been framed. The only discharge recognised by the section is `express discharge'. "No injustice, anomaly or absurdity is likely to result from the view that the discharge contemplated by section 437, does not include not framing a charge under the section when a charge under another section is framed. The Magistrate is not prevented from committing the accused at a later stage; section 347, gives him full power to do this so long as he has seizin over the case. So long as the case is not decided by him, nobody can predicate that the accused would not be committed by him. If he retains the power of commitment, it would be difficult to say that the accused has been discharged. When in a trial for one offence a Magistrate discharges an accused, he becomes functus officio as regards that trial; he has no power of reviewing or revising the order of discharge." True,, the Code has not defined discharge, still it has come to acquire a precise technical significance. When the Statute says that the power under section 437 will come into play in the case of improper discharge only what it, means is that the main part of section 437 cannot be invoked when there is no categorical discharge or when the discharge is left to inference only. According to the main part of the section even in the case of improper discharge there are two courses open, namely, fresh inquiry and commitment which shows that in fit cases there can be fresh inquiry also. We are not inclined to hold that the words regarding the fresh inquiry are absolutely superfluous. The language of section 209 of the Criminal Procedure Code is clear and free from any ambiguity. The accused can only be discharged when the Magistrate finds that there are no sufficient grounds for committing him for trial and in that case it is incumbent upon the Magistrate "to record his reasons and discharge". The language of the section shows that it must be discharge in so many words. The word `unless' is not without significance. The Magistrate shall discharge the accused when he finds that there are no sufficient grounds for commitment unless it appears to him that the accused should be tried before himself or before some other Magistrate. Thus only two alternative courses are open to the Magistrate, namely, to discharge the accused or to get him tried before himself or some other Magistrate. He cannot do both. He cannot discharge the accused and also try him. The language of section 209 is conclusive and leaves no room for implied discharge. The fact that section 209 requires the Magistrate to record reasons for the discharge clearly shows that the discharge must be an express discharge. When reasons are recorded and an order of discharge is passed it cannot be a discharge by implication. Where an accused is charged with two or more distinct offences he can be discharged with respect to one offence and tried with respect to other. In such case also the discharge must be an express discharge giving reasons and not an implied discharge. Framing of a charge for a minor offence does not and cannot imply a discharge from a major offence since there is no termination of the proceedings till the trial is concluded and the Magistrate may change his mind even at a later stage on the basis of further evidence and may also alter charge on further facts coming to light in cross‑examination and canceling the minor charge frame a charge for the major offence and commit the accused for trial. No injustice or anomaly seems to follow from the view that the discharge contemplated by section 437 does not include not framing of a charge under one section when a charge under another section has been framed. The Magistrate is not prevented from committing the accused at a later stage for which section 347 gives him the full power. A I R 1941 Oudh decision which we will touch later deprecates interference in the midst of hearing of the case and seems to hold that direction for commitment under section 437 should only be given when there has been a completed inquiry under Chapter XVIII followed by an order of discharge in a case triable exclusively by the Court of Session. Where there is an express discharge the Sessions Judge will act under the main section for example, if in a case the facts of which constitute offences under sections 302 and 436, P. P. C. the Magistrate passes an order of discharge with regard to some or all of those offences by recording reasons as required by the section itself and discharges the accused of those offences, this is a case of express discharge and that is the only kind of discharge contemplated by the main part of the section. If the Magistrate does not record any reason and does not pass an express order of discharge in so many words the Sessions Judge is not competent to make any order under the main section. In such case the only course is provided by proviso (b) viz., that of inquiry into offences which are found to have been committed on the evidence on record. The words `some other offence' cannot be without significance. Thus the other offence mentioned in the proviso (b) must be an offence other than that with respect to which the accused has been discharged, that is, discharged expressly. There is thus remedy in both the cases. This approach also seems to leave unaffected the various other provisions of the Criminal Procedure Code. In the decision reported in A I R 1954 All. 163, the facts are that in a trial for offences under sections 147 and 323/149, Penal Code a date was fixed for defence evidence but the District Magistrate on being moved by the complainant directed the trial Court under section 437 of the Criminal Procedure Code to commit the accused to the Sessions Court for trial of offences under sections 147 and 307/149,

1. P. C. It was held that the District Magistrate had no jurisdiction to pass the order under section 437 of the Criminal Procedure Code as the accused were not discharged and as such the order was illegal. It was further held that even though the accused prima facie appeared to have committed an offence under section 307, I. P. C. it was not proper for the High Court to order commitment to the Court of Session in exercise of its revisional powers, as it would amount to validating the order of the District Magistrate which was palpably illegal and without jurisdiction and further that it was open to the Magistrate at any stage of the trial before signing the judgment to make a commitment to the Court of Sessions under section 347 of the Criminal Procedure Code. Reliance was placed upon the Full Bench decision as reported in 1952 All. In the decision reported in A I R 1953 Cal. 567 it was held that an order of commitment can be passed under section 437 only when the accused has been improperly discharged. Where out of the two possible charges under sections 366 and 498 of the Penal Code the Magistrate frames a charge under section 498, Penal Code, the Sessions Judge cannot order commitment for offence under section 366, Penal Code. Harries, C. J., delivering judgment observed: "The petitioner was not improperly discharged. He has been charged with a serious offence and he is now awaiting the conclusion of the trial. Therefore this case does not fall within the four corners of section 437, Criminal P. C. That was the view of a Bench of this Court consisting of Derbyshire, C. J., and Herderson, J., in the case of Haripada Biswas v. Emperor where it has been pointed out that the accused must be improperly discharged before a learned Sessions Judge can exercise his powers under section 437." This Calcutta decision along with the previous one seems to be fully in line with Allahabad Full Bench decision although in this case no reference or reliance was made to the Full Bench decision of Allahabad, and the learned Judges came to the same conclusion on the basis of an earlier Calcutta decision. In the case of Nasimullah v. Emperor through Prem Narain (A I R 1941 Oudh 409), it was held inter alia that the clear distinction between sections 436 and 437, Criminal Procedure Code, was that section 437 contemplates a case in which there had already been completed inquiry under the provisions of Chapter XVIII, Cr. P. C. followed by an order of discharge in a case triable exclusively by a Court of Sessions. "The essential point either for a Magistrate acting under section 347 or for a Sessions Judge acting under section 437 is to make certain that the rights of the accused are in no way prejudiced. An interference under section 437 with a trial, while it is actually going on, must be deprecated and even if such a power exists it should only be exercised in rare cases." In a case under section 307, Penal Code, the police prosecuted the case to the Court under section 377 read with section 511, Penal Code and the Magistrate in due course took over the trial as for a warrant case. He heard arguments prior to the framing of the charge and it was urged before him that a prima facie case had been established not only under section 377 read with section 511 and section 323, Penal Code but also under section 367 or 309, Penal Code. The Magistrate, however, framed charges under sections 377/511 and 323, Penal Code only and fixed a date for further cross‑examination of the prosecution witnesses.. On the following day the complainant applied to the Magistrate to commit the case to Court of Sessions on charges under section 367, 327 and 307 or 308, Penal Code in addition to the charges under sections 377/511, Penal Code. The Magistrate returned the application to the complainant with an endorsement "returned. It must come through P. L" On the very next day the complainant filed an application in revision under sections 435 and 437, Criminal Procedure Code. The Additional Sessions Judge under section 437, Criminal Procedure Code, directed the accused to be committed for trial upon charges under sections 367 and 307, Penal Code. It was held in those circumstances that the order directing committal was not justified in the circumstances of the case nor was it justified by section 437 in a case which was in the middle of its bearing. In the case of the Sessions Judge of Coimbatore v. Murappa Goundan (I L R 41 Mad. 982), it was held on a reference by the Sessions Judge that the proceeding of the Subordinate Magistrate did not amount to an order of discharge on the major offence and the District Magistrate had no jurisdiction to pass an order under section 436 of the Criminal Procedure Code directing the Subordinate Magistrate to commit the accused to the Sessions for the offence under sections 376 and 511 of the Penal Code. The commitment was quashed and the Subordinate Magistrate was directed to proceed with the trial of the minor offences. The facts show that where a Subordinate Magistrate took cognizance of a case on a police charge‑sheet charging the accused with offences of assault and hurt under sections 354 and 323, Penal Code, but no charge was made therein of the offence of attempt to rape, under sections 376 and 511, Penal Code and the prosecution did not press for the framing by the Magistrate of a charge in respect of that offence, but the District Magistrate purporting to act under section 436, Criminal Procedure Code, directed the Subordinate Magistrate to commit the accused to the Sessions for an offence under sections 376 and 511, Penal Code, and the accused was so committed. This decision which is a Division Bench decision of the Madras High Court and an earlier decision has not been referred to in the 1953 Full Bench decision of Madras. It is true that in this case the decision as reported in 1501 I L R 24 Mad. 136 which also was a Full Bench decision was distinguished from. This decision proceeded upon the principle that as nobody suggested before the Subordinate Magistrate that he should convert the charge into one of a major offence exclusively triable by a Court of Sessions no question of discharge arose under section 209(1), Criminal Procedure Code. Though not directly, this decision also falls in line with the Allahabad decisions. The Allahabad line of decisions as cited by Mr. Mozammel Huq is that for the first part of the section to be attracted there must be express discharge. Now coming to the decisions cited by Mr. B. N. Chowdhury for the opposite‑party, the Madras view is that non‑framing of charge amounts to implied discharge and that discharge need not be in express terms. The leading decision on the subject as placed before us is that of 1953 Madras, a Full Bench decision in which it was held inter alia that where under section 20''(1) a Magistrate finds that there are not sufficient grounds for committing the accused for trial and directs such persons to be tried before himself or some other Magistrate, the revisional powers under section 437 can be exercised before the conclusion of the trial before such Magistrate and when a Magistrate discharges on accused in respect of an offence exclusively triable by a Court of Sessions and proceeds to try him himself for an offence within his jurisdiction, on the language of section 437. it will be open to the District Magistrate to direct the committal of the accused for trial "upon the matter of which he has been in the opinion of the District Magistrate improperly discharged." Reliance was placed on the decision in the case of Krishna Reddi and others v. Subbamma (I L R 24 Mad. 136), as also on several other decisions of the same High Court. Except for the Full Bench decision of the Allahabad High Court which was taken into consideration and dissented from, there was no elaborate examination of any decision of any other High Court. It was held in this Madras Full Bench decision that the word "matter" was elastic enough to comprehend a single charge or a plurality of charges, a single offence or a plurality of offences, a part of a case or the whole of a case and that the word was also appropriate enough to cover cases where the same act was punishable under two or more sections of the Code. It was observed further that the word "discharge" is not defined in the Code. The word is used in the Code in relation to different sets of circumstances or situations. A discharge of the accused in one set of circumstances produce consequences which are not identical with a discharge in another set of circumstances. To say that the word "discharge" is used in the same sense throughout the Code and that as it produces certain results in certain situation it must produce the same results in all situations is to refuse to recognise the existence of the large variety of situations for which the Code makes provisions and it was observed further that the clause "unless it appears" in the context only means "and then proceed to try him for other offences". It may be mentioned here that on reference by a Single Judge this case was placed before a Division Bench by an order of 14‑11‑52 and by a subsequent order of reference dated 15‑1‑53 the matter went to the Full Bench. The circumstances in the case were that a station House Officer, filed a charge‑sheet against seven persons for offences under sections 147, 148, 324 and 302, Penal Code and section 4(1) of the Madras Prohibition Act. The Stationary Sub‑Magistrate before whom the charge‑sheet was laid, held an enquiry under Chapter XVIII, Criminal Procedure Code, and in the exercise of the powers conferred on him by section 209 of that Code, discharged accused 1 to 3 in respect of the offence under section 302, Penal Code. The Sub‑Magistrate remarked " . . . . taking any view of the matter it is impossible for any Judge to find that A‑1 to A‑3 had a common intention to kill the deceased. So under these circumstances I feel compelled to discharge the accused for the offence of murder or culpable homicide not amounting to murder with which they stand charge‑sheeted. They shall however be charged for various other offences the evidence disclosed and shall be tried before me. Proceedings shall therefore be converted into one under Chapter XXI of the Criminal Procedure Code." The District Magistrate being moved passed an order to the effect that the order discharging accused 1 to 3 is reversed and the Sub‑Magistrate is directed to commit the accused 1 to 7 to take their trial before the Sessions Court. The accused thereupon moved the High Court of Madras to revise the order of the District Magistrate and it was held as quoted already that it was competent for the District Magistrate or the Sessions Judge in those circumstances to revise the order of discharge without waiting for the termination of the proceeding before the Magistrate. The learned Judge delivering the Full Bench judgment also observed that that was the only logical result of the view that the decision to proceed under the latter part of section 209(1), Criminal Procedure Code amounted to an order of discharge. The question for consideration before the Full Bench was:‑ "Where under section 209(1) a Magistrate finds that there are not sufficient grounds for committing the accused for trial and directs such person to be tried before himself or some other Magistrate, can the revisional powers under section 437 be exercised before the conclusion of the trial before such Magistrate?" The decision in the case as reported in I L R 24 Mad. 136 has been placed before us as the earliest Full Bench decision of Madras on the scope of section 437, Criminal Procedure Code and as the foundation for the other Madras decisions that followed. In this case certain persons were charged before a Magistrate of the first class under section 379 of the Penal Code with a theft of a promissory note. The prosecution applied for a further charge to be framed under section 477, Penal Code, but the Magistrate declined to do so as in his opinion there was no direct evidence that the accused had destroyed or secreted the note. After hearing the evidence for the defence the Magistrate acquitted the accused under section 258 of the Code of Criminal Procedure. An application was then moved to the Sessions Court to call for the records and to direct the committal of the accused for trial for an offence under section 477 of the Penal Code. The Sessions Court ordered that a further inquiry be made and that the accused be committed for trial. On its being contended on revision that the order of the Sessions Court was illegal on the ground that the accused had been acquitted and not discharged, it was held that the order of the Magistrate was in substance an order discharging the accused in respect of an alleged offence under section 476 and that the Sessions Judge had jurisdiction to make the order sought to be revised. This decision is really the corner stone of the Full Bench Madras decision of 1953 In re: Nalla Baligadu and others. In the decision in the case of In re: Gandi Apparazu (A I R 1920 Mad. 94), it was held that the commitment order passed by the Sessions Judge under section 304 was valid as the Sub‑Magistrate, who had evidence of facts pointing to an offence under that section must be deemed to have impliedly discharged the accused of that offence and it was competent for the Sessions Judge to set aside that order suo motu. In this case the police charged an accused before a Sub‑Magistrate under sections 147, 323 and 325, Penal Code. In course of the inquiry P. W. 1 who initiated the proceeding before the police applied to the District Magistrate to commit the case to the Court of Sessions. The District Magistrate rejected the petition holding that the petition was incompetent and that the police alone had a locus standi to move in the matter. The Sub‑Magistrate acquitted the accused of the offence under section

147. After the termination of the trial P. W. 1 moved the Sessions Judge under section 436 who ordered the committal of the accused under sections 147 and 304, Penal Code. The commitment under section 147 was held to be illegal as the accused had been acquitted in respect of the charge under that section and the commitment under section 304 was held to be valid. All these decision of Madras, therefore, support the view that there can be implied discharge and that the main part of the section is attracted in such a case. The next decision relied upon by Mr. Chowdhury is that of Sultan All and others v. Emperor (A I R 1934 Lah, 164), (Lahore of undivided India). In this case it was held that the word "discharged" in section 437 does not mean "absolutely discharged and set at liberty" but also partially discharged or in other words not charged with an offence exclusively triable by the Court of Session. In this case the accused were charged by the trying Magistrate under section 304, Part II and section 148, Penal Code. The complainant moved the Sessions Judge and he directed their commitment under section 302/149, Penal Code. On revision the Division Bench of the Lahore High Court accepted the views of 24 Mad. 136 on the ground that the weight of authority was in favour of the view taken by the learned Sessions Judge and that the conflict, if any, had been set at rest by the pronouncement of the Privy Council in Krishan Singh v. Emperor (A I R 1928 P C 254), in which it was held that where a person is charged under section 302, Penal Code, but is convicted under section 304, this order is tantamount to an acquittal in respect of the major charge and therefore in the absence of an appeal by the local Government under section 417, Criminal Procedure Code, the High Court cannot convert the conviction under section 304 to one under section 302, Penal Code. It may be mentioned here that we are not dealing with acquittal but only with discharge. The learned Judges went on to observe that the language of section 209 presented a certain amount of difficulty but it had to be interpreted in the light of the Privy Council ruling and the Madras Full Bench ruling referred to. To us the Privy Council decision does not seem to be directly on the point and the Madras decisions referred to seem to follow each other rather tenaciously. The next decision relied upon by Mr. B. N. Chowdhury is the decision in the case of Muhammad Ishaque and others v. Muhammad Anu Mia, a Single Bench decision of this Court, as reported in which it was held inter alia that omission to frame charge in regard to particular offence may amount to "discharge" of accused of such offence if Magistrate had applied his mind or had consciously refrained from framing a charge and that acquittal or conviction under one charge does not necessarily mean discharge under another and that the Sessions Judge could interfere only when discharge was improper or required further inquiry. This decision also proceeds on the basis that the Sessions Judge can interfere under the main part of the section 437 in the case of implied discharge also. The learned Single Judge has discussed quite a large number of decisions of different High Courts on the point but it seems that the two Full Bench decisions, namely of Allahabad and Madras were not placed before the learned Judge. The learned Judge, however, has referred fully to I L R 24 Mad. 136 which is the corner stone and foundation of the Full Bench decision of the Madras High Court of 1953. The referring single Judge has besides many other cases as discussed by him, referred to the decision in the case of Moonda and others v. The State (P L D 1958 S C (Pak.) 275) and the decision in the case of Ibrahim and others v. The State (P L D 1961 S C 200). These two decisions do not seem to us to be directly relevant except showing the importance of each and every section of Chapter XVIII, Criminal Procedure Code. The decision in the case of Ramchandra Babaji Gore v. Emperor (A I R 1935 Bom. 137) has also been mentioned by the referring Judge. In this case what actually was held was that the Sessions Judge's power to set aside discharge order is not limited to cases where order is perverse or manifestly contrary to evidence and that he could do so even on ground that he disagrees with appreciation of evidence by Magistrate. The case does not directly deal with express discharge or implied discharge but proceeds upon the principle that there may be cases of implied discharge where the Sessions Judge could interfere under section 437, Criminal Procedure Code. The learned Judges, however set aside the order of the Sessions Judge on the view that though the learned Sessions Judge had jurisdiction to set aside the order of the learned Magistrate he was wrong in that particular case. The learned Magistrate having given a detailed judgment in which he discussed the prosecution evidence and it being clear that in discharging the accused he so acted, not because in weighing the evidence of the prosecution and the evidence of the defence he thought that the prosecution failed; he discharged the accused because he was satisfied that no Tribunal could possibly convict on the evidence before him, the High Court refused to uphold the order of commitment by the Sessions Judge. As it will appear from the above, the Madras view is that non‑framing of charge amounts to discharge and that discharge need not be in express terms. The Madras line of decisions has the tendency to render nugatory not only a part of the section itself, namely proviso (b) but also to restrict the ambit of several sections of the Code. The Full Bench Madras decision of 1953 as stated before made no reference to the decision in 41 Mad. and it found difficulty in getting over certain observations of Krishnan, J., in the decision in A I R 1920 Mad.

94. At pages 803 and 804 the Full Bench sought to reconcile without much success with the view of Krishnan, J. In this case of 1920 Mad. 94, Krishnan, J., delivering the order of the Court remarked "Now it will be noticed that at the time the application was made there was no express order of discharge as to section 304, I. P. C., nor could an order of discharge be implied under the authority of Krishna Reddi v. Subbamma, above referred to, as the trial had not come to a close as in that case and it was still open to the Sub‑Magistrate to frame further charges and commit under section 347, Criminal P. C., if he thought fit to do so. There was thus no order of discharge to revise and the application cannot be looked upon as one for that purpose." This 1920 Madras decision has thus the tendency to be more in line with the Allahabad decisions. The Madras Full Bench decision does not also consider the significance of the expression "arrest" as occurring in the section nor does it try to give any fixed and precise sense as required in law, to the expression "discharge". The particular circumstances of that case was one of express discharge and the discussions on "implied discharge" was more or less academic. The Allahabad decision seems to be more apt for our present purposes as it deals with implied discharge directly. The Madras decision moreover seems to refer to only one or two sections of the Criminal Procedure Code, particularly section 347 and not to other relevant sections of the Criminal Procedure Code which have bearing on the subject. This Madras Full Bench decision has also lost sight of the importance and significance of proviso (b) of section 437, Criminal Procedure Code. At any rate, it does not say as to what is the purpose of proviso (b) and as to what classes of cases could come under that category. Moreover the Madras approach of the question is not so exhaustive as that of Allahabad. The Allahabad decision deals with the subject in a more comprehensive manner considering the different sections and sub sections of the Criminal Procedure Code together ‑and their bearing and impact upon each other and we feel disposed to accept the Allahabad line of decisions. Consequent to our accepting the Allahabad view, the question of remedy becomes important. It has been observed in this Full Bench decision at page 236 that no injustice, anomaly or absurdity was likely to result from the view that the discharge contemplated by section 437 does not include not framing a charge under the section when a charge under another section is framed. The Magistrate is not prevented from committing the accused at a later stage; section 347 gives him full power to do this, so long as he has seizin over the case. So long as the case is not decided by him, nobody can predicate that the accused would not be committed by him. Dilating upon the case under sections 304‑A and 304, Desai, J., observed that when the learned Magistrate thought that the act is punishable under section 304‑A, Penal Code and framed a charge under that section he has not discharged or lost jurisdiction over him and he could at any time before convicting or acquitting him, frame a charge under section 304, Penal Code and commit him for trial. Another remedy is that the complainant can file another complaint under section 304, Penal Code, this complaint would not be barred by the provisions of section

403. Commitment could be ordered even by the High Court in exercise of its powers under section 439, the exercise of which does not depend upon any "discharge". Finally, after the Magistrate had passed a judgment of conviction or acquittal, Government can file an appeal against the acquittal of the charge of section 304, Penal Code. The Madras Full Bench has very severely criticised the remedies as suggested by Desai, J., in the Allahabad Full Beach case. The relevant lines of the Madras Full Bench decision of 1953 at page 806 are as under: Balakrishna Aiyyar, J., delivering the Full Bench judgment. "I have read with great care the judgments of all the three learned Judges, but I must say that I am not persuaded by their reasoning. One is tempted to ask: if there was no discharge of the accused in respect of the offence under section 304, I. P. C., what happened to that charge or accusation? One answer suggested by Desai, J., is that an acquittal would be implied. But surely this is hardly a satisfactory answer since the Magistrate enquiring into an offence exclusively triable by a Court of Session has no power either to convict or to acquit. How can there be an acquittal by a Court which is not competent to pass such an order? How again can an acquittal be implied where a discharge cannot be implied, since acquittal and discharge both imply an exoneration of the accused, one main difference between the two forms of exoneration being that in the case of an acquittal the accused is entitled to the protection conferred by section 403, Cr. P. C.? This is not by any means the end of the difficulties which the view taken in the Allahabad High Court would raise. If a committing Magistrate improperly refuses to frame a charge in respect of an offence exclusively triable by a Court of Session and tries the accused for a minor offence and finally disposes of those offences how can his mistake be put right? Desai, J., suggested that the complainant confine another complaint but ordinarily that complaint would have to be presented to the same Magistrate and it can hardly be expected that he would take a different view merely because a new copy of the old complaint is handed over to him, Desai, J., also suggested that a commitment can be ordered by the High Court but consistently with the view taken in that decision how this can be done? As I explained before, if a discharge cannot be implied an acquittal cannot be implied either, and if there has been neither a discharge nor an acquittal, what order can the High Court set aside? Desai, J., finally suggested that the Government can file an appeal against the acquittal, but as already pointed out the assumption that there has been an acquittal cannot be justified at all. Desai, J., who delivered the leading judgment in the case remarked: "If he (the Magistrate) retains the power of commitment, it would be difficult to say that the accused has been discharged." Balakrishna Aiyyar, J., went on to observe: "With all respect, I regret my inability to follow this. Section 347, Cr. P. C., merely gives the Magistrate a further opportunity to reconsider his decision. It does not imply that a decision has not already been arrived at or given. Besides the circumstances that the Code gives the Committing Magistrate an opportunity to re‑examine his earlier view, does not in any way take away the revisional power either of the District Magistrate or of the Sessions Judge." We do not agree that since the second complaint has to be placed in the hand of the same Magistrate it will bear no fruit. Further the second complaint need not necessarily be to the same Magistrate. The normal procedure is that the S. D. O. takes cognizance of the case and it is transferred to and heard by some other Magistrate. In any case trial by the same Magistrate can be avoided by pointing out to the S. D. O. or the Magistrate concerned. We feel also that it is not proper and necessary to put undue strain on the main part of the section when the Legislature has provided proviso (b) for cases other than express discharge. No harm follows if the main part of the section 437 is reserved for express discharge only and the proviso (b) for other discharges. Two courses are open to the same Sessions Judge; in the case of express discharge he will proceed under the main part and in the case of other discharges he will proceed under proviso (b). As to the other remedies suggested by the Allahabad Full Bench decision, namely, that of revision in High Court and appeal by the Provincial Government, it seems that the question is not free from difficulty as pointed out by the Madras Full Bench decision. At any rate, the quarrel as to whether it is discharge or acquittal is more or less academic. The difficulty can be greately solved if the two parts of the section are given definite purposes. Now coming to the two cases before us, we find that in none of these cases there is any order of express discharge by the learned Magistrate. In the case of Criminal Revision No. 69 of 1963, the learned Magistrate has given certain cogent reasons in support of his view that he can proceed with the case as a warrant case. He has also said that if after the close of trial and before judgment the Court feels that the case is fit for commitment the Court will do so. Consistent with our view as discussed before, we hold that the Sessions Judge was not competent to pass the order impugned in this case, as there was no improper discharge by the learned Magistrate within the meaning of the main part of section 437, Criminal Procedure Code. So far as Revision Case No. 80 of 1963 goes, the case was in embryonic stage before the learned Magistrate and there was not even a petition before him, as in the other case, for commitment, for from there being any order of discharge. In that view of the matter, we think that the orders of commitment in both the cases are to be set aside and we set those aside accordingly. In the result we make the rules in both the cases absolute and direct that the Magistrates do proceed with the trials on the charges as framed by them. We however make it clear that if at any stage, it appears to the respective Magistrates that charges under section 307 and/or 436 P. P. C. in the respective cases should be framed and that the accused should be committed to the Court of Session, they will exercise their discretion under section 347, Criminal Proce dure Code. ABDUS SUBHAN CHOUDHURI, J.‑I agree. K. B. A. Rules made absolute.