Their Lordships delivered the following judgments:—
Benson, J.:— I do not think that the order of the Sessions Judge was one which he had no jurisdiction to make. In my view the decision of the Magistrate must be taken to be not only one of acquittal of an offence punishable under section 379, Indian Penal Code, but one of discharge so far as the alleged offence under section 477, Indian Penal Code is concerned. The complaint against the accused was that he committed an offence punishable under section 477, Indian Penal Code. Such offence is triable exclusively by the Court of Session. The Magistrate could neither acquit nor convict him of such offence. He was bound either to commit him to the Sessions Court or to discharge him. He did not commit him. The only alternative was to discharge him, and that, I take it, is what the Magistrate really did do. It is not suggested that the charge under section 477 is still pending before the Magistrate. It has been disposed of, and the only question is as to what the disposal has been. It seems to me that the accused has been discharged so far as the charge under section 477 is concerned. The Magistrate's order, if stated fully, should have been “I discharge him as regards the offence punishable under section 477, and I acquit him as regards the offence punishable under section 379.”
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 jurisdiction 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 discharged, 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.
The fact that the accused was acquitted of the minor offence of theft could not, in my opinion, affect the power of the Sessions Judge, any more than that power would have been affected by a conviction on the minor charge of theft.
Section 403, clause (4), Criminal Procedure Code, distinctly enacts that “a person acquitted or convicted of any offence constituted by any acts, may, notwithstanding such acquittal or conviction, he subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.”
In the present case, therefore, the acquittal of theft by the Magistrate would be no bar to the trial and conviction of the accused by the Sessions Court on the same facts for an offence punishable under section 477, Indian Penal Code, since the latter offence is one which the Magistrate was not competent to try—and it in difficult to see how it can be a bar to the exercise by the Sessions Judge of the revisional jurisdiction conferred on him by section 436, Criminal Procedure Code.
One of the objects of sections 403 and 436, Criminal Procedure Code, is to prevent Magistrates with limited powers from clutching jurisdiction in important cases, but this object would, it seems to me, with all respect, be, to a great extent, frustrated if the view of the Calcutta High Court on which the decision in Baijanath Pandey v. Gauri Kanta Mandal(1) followed in Queen Empress v. Hanumantha Reddi(2) is based, be accepted as correct. Under Section 403, clause 4, if A is charged with, and acquitted of, theft by a Second-class Magistrate, he may, on the same facts, be tried and convicted by a First-class Magistrate on a charge of robbery. The First-class Magistrate has this power notwithstanding the fact that an appeal against an acquittal can be made only by Government, and lies only to the High Court, and the reason, I take it, is because the Second-class Magistrate acted improperly in clutching jurisdiction and in dealing with a case which be ought not to have dealt with but left for the decision of a Court of competent jurisdiction. The Second-class Magistrate's proceedings in such a case are held to be no bar to further proceedings before the Court which is really competent to deal with the matter. On the same principle I do not think that the improper action of the Magistrate in clutching jurisdiction can be held to be a bar to the exercise of the revisional jurisdiction vested in the Sessions Judge under section 436. Nor can it be said that the Sessions Judge in the Calcutta case or in the present case, was exercising the powers of a Court of Appeal (section 423, Criminal Procedure Code) in a case of acquittal any more than a First-class Magistrate exercises such powers when he proceeds under section 403, clause 4, to convict of robbery a man who has been acquitted of theft, on the same facts, by a Second-class Magistrate. If this view is correct the ground on which the Calcutta case rests is not sustainable and no other ground in reason can, I think, be suggested why the Sessions Judge's general jurisdiction to revise improper discharge should be taken away in this particular class of cases.
As to the language of section 209, it may, I think, be conceded that it contemplates trial by the Magistrate as an alternative to discharge, but that is because the section is framed on the assumption that the Magistrate will act within his jurisdiction. There are many cases in which a Magistrate has a discretion as to whether be will try a case himself or will commit it for trial to the Court of Session. It is to meet such cases that the alternative given by the last clause of the section “unless it appears, &c. ……………” is provided. Suppose a man is charged by the Police with having committed murder and theft at the same time and place and a Magistrate after enquiry says “I do not think there is sufficient evidence to justify me in committing the accused for murder, but the theft is proved and I convict him of that offence” can it be held that the Sessions Judge could not on revision, order the Magistrate to commit the accused on a charge of murder? I think there is no doubt but that he could do so, yet section 209 does not in terms provide for such a case nor does any other section of the Code do so. In my judgment, however, trial on a minor charge is not inconsistent with a discharge as regards a grave offence, nor does the provision for such trial by the last clause of the section negative the propriety of an order of discharge for a grave offence under the first part of the section. If such order of discharge had, in fact, been made in the present case, there can be no doubt the Sessions Judge would have been able to interfere under section 436 and, in my judgment, the mere omission to make a formal order makes no difference, when the proceeding in reality amounts to a discharge.
I would, therefore, dismiss the petition on the ground that the judge had jurisdiction to make the order.
Moore, J.:— Three persons were put on their trial before the Head Assistant Magistrate of Nellore, the case for the prosecution being that they had committed offences under sections 379 and 477 of the Indian Pena. Code. The Magistrate acquitted them of the charge under section 379. He was asked to frame a charge against them of having committed an offence under section 477, Indian Penal Code, but refused to do so as the evidence did not appear to be sufficient to warrant him in drawing up a charge under that section. On application having been made to the Sessions Judge he directed that further enquiry should be made and that the accused persons should be committed to the Court of Session on a charge of having committed an offence under section 477, Indian Penal Code.
It is now urged that, as the accused persons had not been discharged by the Head Assistant Magistrate with respect to a charge of having committed an offence under section 477, Indian Penal Code, it was not open to the Sessions Judge under section 436 of the Criminal Procedure Code to direct that they should be committed to the Court of Session for trial on that charge and attention is called to the case of Baijanath Pandey v. Gauri Kante Mandal and to Queen-Empress v. Hanumantha Reddi on the file of this Court.
In answer to this argument it is urged that the present case can be distinguished from those just mentioned on the ground that although a formal order discharging the accused persons with respect to a charge of having committed an offence under section 477, Indian Penal Code, was not drawn up under section 209, Criminal Procedure Code, yet that the men were accused before the Magistrate of having committed that offence and that the Magistrate having refused to frame a regular charge against them under that section, it must be held that they were discharged by him in so far as that offence was concerned and that, such being the case, it was not necessary, in order to give the Sessions Judge the right to act under section 436, Criminal Procedure Code, that a formal order of discharge under section 209, Criminal Procedure Code, should have been drawn up.
With reference to these contentions it will be seen, on referring to the cases above mentioned, that no distinction can he drawn between them and the present case. In Baijanath Pandey v. Gauri Kanta Mandal it will be found that the complaint against the accused persons was that they had committed dacoity; the Magistrate, however, found “that no sessions offence was primâ facia established” (vide page 639) and accordingly framed charges of offences under sections 379 and 448 of the Indian Penal Code which he proceeded to try himself. Here, as in the present case, although there was no formal discharge under section 209 of the Criminal Procedure Code, there was a refusal by the Magistrate to proceed against the accused persons on a charge of dacoity. I have referred to the magisterial records connected with Queen Empress v. Hanumantha Reddi on the file of this Court and find that the facts are similar to the present case. There a Deputy Magistrate took up a charge laid before him as being one under section 304, Indian Penal Code. He examined witnesses but took leave before completing the enquiry. His successor, “after careful consideration of the evidence on record and of the circumstances of the case and after hearing the pleaders on both sides,” held that a charge under section 304, Indian Penal Code, could not stand. He accordingly proceeded to try the accused persons under sections 147 and 325 of the Indian Penal Code, and acquitted them of offences under those sections. He, however, did not either formally or otherwise discharge them under section 209, Criminal Procedure Code, with reference to the complaint made against them of having committed an offence under section 304 of the Indian Penal Code. It thus appears to me to be clear that no distinction can be drawn between the present case and those already alluded to. Having a second time heard the question fully argued, I am of opinion that the decision in Queen-Empress v. Hanumantha Reddi, in which I took part, is correct. What the Sessions Judge should have done in this case was, as pointed out in Baijanath Pandey v. Gauri Kanta Mandal, to make a reference to the High Court under section 438, Criminal Procedure Code. I may further point out that not only did the Head Assistant Magistrate not discharge the accused persons with respect to the charge under section 477, Indian Penal Code, before be proceeded to try them for theft, but that under the provisions of section 209, Criminal Procedure Code, it would not have been open to him to do so. That section provides that when a Magistrate has taken the evidence for the prosecution he shall, if he finds that there are not sufficient grounds for committing the accused for trial, record his reasons and discharge him, unless it appears to him that he should be tried before himself or some other Magistrate, in which case he shall proceed to have him tried. The section does not appear to warrant a Magistrate to formally discharge the accused with respect to certain offences under section 209, Criminal Procedure Code, and then preceded to try him for other offences. This point does not, however, appear to me to be of much importance.
On the ground that, as there was no discharge by the Magistrate under section 209, Criminal Procedure Code, the order of the Sessions Judge, under section 436, Criminal Procedure Code, directing committal to the Sessions Court was illegal, I am of opinion that order should be set aside.
[The case again came on for hearing before a Court constituted as above, under sections 429 and 439 of the Code of Criminal Procedure.]
Ramachandra Rao Saheb for accused No. 2.—There was no charge in the complaint in respect of an offence under section 477. The Magistrate charged the accused for theft and they were acquitted. There was no allegation that the accused had destroyed the document. Then the Sessions Judge was applied to and his power of revision invoked. Even if there had been evidence as to an offence under section 477, which is not admitted, I submit that the Sessions Judge had no jurisdiction to pass an order of committal, there having been an acquittal by the Magistrate. The Sessions Judge's order was passed under section 436. If there is no order of discharge the Sessions Court had no power to make the order. To see if the order was one of discharge, it is necessary to examine section 209. Here the Magistrate has not discharged the accused. [Davies, J., referred to the Magistrate's order—“I am asked to charge the accused under section 747. This I decline to do.” That was a refusal to charge and was in effect a discharge; and must have been passed under section 209, as there is no other section under which it could be passed] [Subrahmania Ayyar, J., referred to Queen-Empress v. Pirya Gopal.] There are three modes of discharge,—under sections 209, 213 and 253. Under section 437 a Sessions Judge may direct the District Magistrate by himself or by any of the Magistrates subordinate to him to make, and the District Magistrate may himself make, or direct any Subordinate Magistrate to make, further enquiry into any complaint which has been dismissed, under section 203 or sub-section (3) of section 204, or into the case of any accused person who has been discharged. On the charge of theft the accused were acquitted under section 258. I submit that the Magistrate either discharges, or charges and tries or acquits—he must do one or the other. In Baijanath Pandey v. Gauri Kanta Mandal, the facts disclosed dacoity exclusively triable by sessions. There the Magistrate acquitted the accused and gave sanction to prosecute the complainant. The District Magistrate directed that there should be an enquiry; and the High Court held that the Sessions Judge had exercised a jurisdiction not vested in him by law; acting as a revision Court he could send for the record for any purpose mentioned in section 436, but he was not competent under section 436 to direct a fresh enquiry, inasmuch as the accused had not been improperly discharged of an offence triable exclusively by a Court of Session, but had been acquitted of an offence within the Magistrate's-jurisdiction; the Sessions Judge bad, in fact, exercised the jurisdiction vested in him as an Appellate Court under section 423, as if an appeal had been presented to him from an order of acquittal; such powers in revision cases are only conferred on the High Court. By section 403:— “A person once convicted or acquitted may not be tried again on the same facts.” The meaning of section 209 is made clear by referring to the corresponding section of Act X of 1872, i.e, section 195. I submit that the remark of the Magistrate as to section 477 does not deal with the case, i.e, does not decide it. Queen-Empress v. Hanumantha Reddi. There was nothing to prevent the Magistrate from making an order of discharge. There may be a single; transaction which discloses either a major or a minor offence, and the Magistrate decides there is nothing to justify his proceeding with the higher offence and he decides to proceed with the minor one, and passes an order on the minor offence, that action precludes the possibility of its being a discharge. Har Kishore Das v. Jugul Chunder Kabyarathna Bhuttacharjee was an order of conviction, but that does not affect my argument. That was a charge of mischief. The Sessions Judge directed further enquiry. It was held by the High Court that he could only direct it in two events, i.e, where the complaint had been dismissed under section 203 or sub-section (3) of section 204 of the Code of Criminal Procedure, or where there was an order of discharge. The Magistrate here thought it was a case he could take cognizance of and under the latter part of section 209(1) be proceeded to try it, and acquitted. That precludes its being treated as an order of discharge. I am supported by Baijanath Pandey v. Gauri Kanta Mandal(3) and Queen-Empress v. Hanumantha Reddi.
Mr. K. Brown and S. Subrahmania Ayyar for the complainant were not called upon.
JUDGMENT
The order of the Magistrate was in substance an order discharging the accused in respect of an alleged offence under section 477, Indian Penal Code.
If section 209 of the Criminal Procedure Code is to be construed as meaning that there can be no “discharge” under that section in respect of an offence exclusively triable by a Court of Session in cases where it appears to the Magistrate that the accused should be tried before himself or some other Magistrate in respect of offences not so exclusively triable, there would be a deadlock, since there is no provision in the Code, other than that contained in section 209, for dealing with a case where the Magistrate is of opinion that there is no evidence of an alleged offence which is triable exclusively by a Court of Session, but considers that the accused should be tried before himself, or some other Magistrate in respect of alleged offences which are not so exclusively triable. From the terms of the Magistrate's order it is clear that he adjudicated upon the question whether there was any evidence against the accused in respect of the major offence. The Magistrate came to the conclusion that there was not, and he declined to charge him with the major offence. It seems to us that this is a “discharge” within the meaning of section 209.
Chapter XVIII relates to enquiries into cases triable by the Court of Session 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 Session, 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. In fact, a Magistrate cannot proceed to act under the latter part of sub-section (1) of section 209 until he has “discharged” the accused under the former part of the sub-section. This is the course which the Magistrate adopted in the present case.
We think that the Sessions Judge had jurisdiction to make the order under section 436. We agree with the judgment of Benson, J., and the general grounds of that judgment and we are unable to agree with the view taken by the Calcutta High Court in Baijanath Pandey v. Gauri Kanta Mandal and with the decision of a Division Bench of this Court, Queen-Empress v. Hanumantha Reddi, which followed the Calcutta High Court.
The petition is dismissed.