An order of discharge under S. 251A(2) Cr. P. C., is only in respect of the offences triable under Chapter XXI and does not affect the position that charges of offences triable under Chapter XX also are contained in the police report.

Judgment

DAS GUPTA, J. : The question raised in this appeal is whether a Magistrate after making an order of discharge under S. 251A (2) Cr. P. C., in respect of a charge for an offence triable as a warrant case can still proceed to try the accused for another offence disclosed by the police report and triable as a summons case. The case against the appellant was instituted on a police report which charged him with an offence under S. 332 of the I. P. C., for "voluntarily causing hurt by means of a piece of wood to the complainant, Sisir Kumar Bose, Bailiff of Calcutta Corporation and Chandra Sekhar Battacharjee, an employee of Calcutta Corporation with the intent to prevent or deter those persons from discharging their duties as public servants." The Magistrate after satisfying himself that the documents referred to in S. 173 Cr. P. C., had been furnished to the accused examined the documents and was of opinion after hearing counsel of both parties that the charge under S. 332 I. P. C., could not be sustained. He was however of opinion that there was evidence to establish a prima facie case under S. 323 I. P. C. He accordingly charged the accused under S. 323 I. P. C, examined him and when he pleaded not guilty and claimed to be tried posted the case for the examination of prosecution witnesses. On the next hearing date a submission was made on behalf of the accused that in view of the provisions of S. 251A(2) Cr. P. C., the accused should have been acquitted altogether and no trial for the offence under S. 323 I. P. C., could be proceeded with. The Magistrate rejected this contention and directed that the trial of the accused for an offence under S. 323 I. P. C., would proceed under Chapter XX. That procedure was followed and ultimately the accused was convicted under S. 323 I. P. C., and sentenced to pay a fine of rupees fifty only and in default to undergo rigorous imprisonment for one month. The appellant s application under S. 439 Cr. P. C., for revision of this order was rejected by the High Court. The learned Judge was of opinion that

"if the Magistrate finds on the materials before him that a summons case offence has been committed by the accused, he has the right and duty to proceed in accordance with the provisions of Chapter XX of the Cr. P. C. The word "discharge" used in sub -s. (2) of S. 251A Cr. P. C., must be read as having reference to a discharge in relation to the specific offence upon which the accused has been charge-sheeted. It does not necessarily mean that the accused cannot be proceeded against for some other offence, say a summons case offence, under Chapter XX Cr. P. C."

in spite of the discharge under S. 251A (2). The present appeal is filed on the strength of a certificate granted by the High Court under Art. 134 (1) (c) of the Constitution.

2. The relevant provisions of Ss. 251 and 251A of the Code of Criminal Procedure are in these words :-

S. 251:- In the trial of warrant-cases by Magistrates, the Magistrates shall :-

(a) in any case instituted on a police report, follow the procedure specified in S. 251A; and

(b) in any other case, follow the procedure specified in the other provisions of this Chapter.

S. 251A (1) ............................................

2. If, upon consideration of all the documents referred to in S. 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge him.

3. If, upon such documents being considered, such examination, if any, being made and the prosecution and the accused being given an opportunity of being heard, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try, and which, in his opinion, could be adequately punished by him, he shall frame in writi