In Re: Gangiredla Mathayya

Ramaswami, J.—This is a criminal revision case filed against the order made by the Additional District Magistrate of Visakhapatam in C. R.

P. No. 2 of 1950 which raises an interesting point.

The facts are: Gangiredla Mathayya and six others were charge-sheeted by the police for offences under Sections 147 and 302 read with

Section 149, I. P. C. This case was enquired into in the Court of the Taluk Magistrate of Bimlipatam as preliminary register case No. 3 of 1949.

The Magistrate after hearing witnesses came to the conclusion that only offences under Sections 325 and 323, I. P. C. were made out and framed

charges and wanted to proceed with the trial. Thereupon the Additional District Magistrate has been moved on the ground that the Taluk

Magistrate Bimlipatam had improperly discharged these accused for offences triable exclusively by the Sessions Court and the Additional District

Magistrate in what can legitimately be described as an elaborate and considered order has directed the committal.

The only interesting point that has been taken by Mr. Surysprakasam is that in this case there was no discharge of the accused persons and that

in fact charges have been framed that there has been no termination of these proceedings and that, in these circumstances there can be no

interference by way of revision by the Additional District Magistrate of Visakhapatnam. In this contention he is fortified by a Bench decision of the

Allahabad High Court by Dayal and Bharagava JJ. in -- ''Abdul Waheed v. Rex'', 1950 All L J 647. The substance of that decision is that it was

not necessary for a Magistrate who decides to try a case himself and does not commit the accused to the Court of Session, to record reasons for

his not charging the accused with the offence exclusively triable by the Court of Session; and when the Magistrate decides that the accused be tried

by him or any other Magistrate, the accused is not discharged, and, therefore, no question of recording of reasons arises; and that the mere non-

framing of a charge cannot amount to an order of discharge so long as the accused is on trial with respect to the offences which are charged against

him; that the Magistrate is free to frame a charge which he did not consider necessary to frame, at an earlier stage of the proceedings at a later

stage, and that so long as the Magistrate retains the option of framing a charge against the accused, with respect to the allegations made against him

it cannot be said that the Magistrate had by his non-framing of the charge discharged the accused of the offence which might have been made out

against him on the basis of those allegations and that therefore there can be no interference in revision.

The arguments in this Bench decision, if I may venture to say so are interesting, but with very great respect, it seems to me that they overlook the

scheme of the Criminal P. C., wherein cases are classified into four categories, viz., preliminary register cases, summons cases, warrant cases and

summary trials. The Criminal Procedure Code then proceeds to prescribe the mode of procedure in regard to each of these four categories. In the

case of offences which are ''prima facie'' wholly triable by a Sessions Court at their inception, the procedure is to try the case as a preliminary

register case. If it is found by the Magistrate after enquiry, that the graver charge making it exclusively triable by the Sessions Court, has not been

made out (sic) to drop that accusation or discharge or not proceed with the accused on that graver charge, whatever phrase we might use, and

then proceed to frame a charge himself if he considers that he is competent to dispose of the matter himself or adopt other modes of procedure in

the Criminal Procedure Code.

Then this is precisely what has happened in this case, namely, after a particular stage, the Magistrate has come to the conclusion that the graver

charge has not been made out and that he should proceed with the case on the less serious charge, that he was competent to dispose of the matter

himself and that thereupon he has proceeded to frame charges. If this is not a discharge of the graver charge what else can be a discharge? The

argument that it will be still open to the Magistrate to commit at a later stage and therefore there is no termination of the proceedings on the graver

charge is a mere talking point because after practically the entire prosecution is before Court and the accused has to enter upon his defence what

aggravating factor would come before Court to make the Magistrate convert the C.C. case into P. R. case? Such a likelihood is not beyond the

bounds of possibility but hardly ever likely to arise in practice.

The conclusion of the Bench decision, with very great respect, that the non-framing of charge will not amount to a discharge does not commend

itself to me. In this conclusion we are fortified by two considerations, namely, first of all, if really we adopt the reasoning in this decision, then

Section 437, Cri. P. C. would be rendered practically nugatory. Suppose an accusation against a person is for an offence u/s 302, I. P. C. and it is

started as a preliminary register case and enquired into by the second class Magistrate as happens in this province, and the second class Magistrate

after enquiring into the matter comes to the improper conclusion that the offence of murder has not been made out and frames a charge for the

offence of hurt u/s 324, I. P. C.; and then he proceeds to dispose of the matter as in a warrant case and acquits the accused. Wherein in this

picture does the Sessions Judge and the Additional District Magistrate, come by way of revision? How can the order of this Magistrate clutching at

jurisdiction, assuming that it is such a case, be corrected?

It is unnecessary to proceed further to discuss this matter elaborately, because really if this interpretation is placed, then Section 437, Cri. P. C.

would become a mere dead letter so far as the Sessions Judge and the Additional District Magistrate are concerned because they can only''

interfere in cases of discharge and only the High Court can interfere in cases of acquittal.

In expressing this opinion which I do so with great diffidence having regard to the fact that the learned advocate is relying upon a Bench decision

of the Allahabad High Court, I am fortified by the fact that the Bench decision itself says that its views are opposed to that of the Madras High

Court and that it has held the contrary opinion.

I shall now briefly set out the decisions of the Madras High Court in regard to this matter. The earliest decision we have is a Bench decision of

this High Court in -- ''Gondi Appa Razu v. King Emperor'', 43 Mad 330. In this case, it was held that though the complaint alleged facts against

the accused constituting an offence u/s 302, I. P. C., the Sub-Magistrate disbelieving the evidence on this point did not frame any charge u/s 302

or Section 304, I. P. C. his action amounted in law to an order of discharge on those counts, even though no express order of discharge was

recorded by him, and that being so, it was open to the Sessions Judge u/s 436, Cri P. C. to act ''suo motu'' & set aside the implied discharge &

direct the committal of the accused to the Sessions on being satisfied that he had been improperly discharged as the offence u/s 304, I. P. C. is one

exclusively triable by the Sessions Court.

This decision relies upon and refers to an earlier decision of this Court -- ''Krishnareddi v. Subbamma'', 24 Mad 136. Subsequently on the same

lines, this Court has been interpreting this matter as it can be seen from the two following decisions, viz., --''Lakshmayya v. Emperor'', 1945 Mad

W N Cr. 85. There Happell J. held that in a case where the Sub-Magistrate after hearing the prosecution evidence and the arguments (sic) that no

case had been made out against the accused for an offence u/s 307, I. P. C. and framed charges under Sections 147, 323 and 325 of the I. P. C.,

it must be deemed to have been decided, in effect, that the accused had been discharged by the Sub-Magistrate in respect of the offence u/s 307,

I. P. C. and that the Additional District Magistrate was therefore competent to set aside this order of discharge and direct that the accused be

committed to the Sessions.

In -- ''King v. Parameswarayya'', 1949 Mad W N Cr. 5, it has been held by Govinda Menon J. that when a charge-sheet was filed against the

accused for an offence u/s 307, I. P. C. and the Magistrate was of opinion that the offence on the evidence placed before him was one u/s 337

converted the preliminary register case into a calendar case and convicted the accused u/s 337, I. P. C. the action of the Magistrate amounted to a

discharge of the accused of an offence u/s 307, I. P. C. and that it was open to the District Magistrate either to order a further inquiry u/s 436 ,

Cri. P. C. or to order commitment to the Court of Session and that Section 403, Cri P. C. was bar to the trial of the offence u/s 307, I. P.C.

Therefore the point of law taken fails and in regard to the Additional District Magistrate himself, it is an exhaustive one and he has set out

elaborately the reasons for coming to the conclusion that a case had been made out to commit the accused to Sessions. It would be improper to

discuss the pros and cons of these arguments at this stage, because this is a matter which ought to be gone into in the trial Court itself untrammelled

by the observations of the Additional District Magistrate.

Therefore subject to these remarks, I decline to interfere, and dismiss the petition.

The petitioners will continue to remain on bail until the disposal of the Sessions case and on the same terms as before.