The Additional Sessions Judge had jurisdiction to set aside the Magistrate's order and direct the appellant's commitment to Sessions for trial under S. 307, Indian Penal Code, as the Magistrate's order was tantamount to an implied order of discharge and the Additional Sessions Judge had the power under S. 437, Criminal Procedure Code, to set aside such an order.

RAMASWAMI, J. : This appeal is brought, by special leave, from the judgment of the Patna High Court, dated May 8, 1964 in Criminal Revision No. 162 of 1961 affirming the order of the Additional Sessions Judge of Arrah in Criminal Revision No. 194 of 1960 ordering the appellant to be committed to Sessions for being tried on a charge under S. 307, Indian Penal Code.

2. It appears that the police submitted a charge-sheet against the appellant and 8 others in respect of offences under S. 307, read with Ss. 148 and 149, Indian Penal Code on the information lodged by Gourishankar Tiwari, alleging that the accused had formed an unlawful assembly and, in prosecution of the common object, the appellant Ramekbal Tiwary injured the informant with a gunshot. The defence of the appellant was that Gourishankar Tiwari had raided his house with several other persons and in self-defence he used his gun inside his house as a result or which Gourishankar Tiwari received injuries. The Magistrate to whom the case was transferred by the Sub-Divisional Magistrate, started an enquiry under Ch. XVIII of the Criminal Procedure Code and, having examined eleven prosecution witnesses and heard the arguments of the parties, decided to try the petitioners under S. 251-A of the Criminal Procedure Code for offences under Ss. 326 and 338 of the Indian Penal Code, because, in his opinion, the evidence did not make out an offence under S. 307, Indian Penal Code. This order was made by the Magistrate on March 19, 1960. Thereafter the Magistrate held a regular trial with regard to charges under Ss. 326 and 338, Indian Penal Code and acquitted the appellant and the other accused of those charges by his order, dated July 13, 1960. On behalf of the prosecution, an application in revision was made to the Additional Sessions Judge who allowed the application and set aside the two orders of the Magistrate, dated March 19, 1960 and July 13, 1960 and directed the Magistrate to commit the appellant and the other accused to the Court of Sessions on charges under Ss. 307 and 148 and 307 read with S. 149 of the Indian Penal Code. The appellant took the matter in revision in Revision No. 162 of 1961 before the Patna High Court which, by its judgment, dated May 8, 1964 held that the appellant was improperly discharged by the Magistrate and the order of the Additional Sessions Judge for his commitment under S. 307, Indian Penal Code was, therefore, justified. With regard to the other accused persons, the High Court held that there was no evidence to justify their commitment and the order of the Additional Sessions Judge with regard to these accused persons was set aside.

3. The first question involved in this appeal is whether the Additional Sessions Judge had jurisdiction under S. 437, Criminal Procedure Code to direct the commitment of the appellant to Sessions Court on a charge under S. 307, Indian Penal Code in the circumstances of this case.

4. In order to decide this question it is desirable to examine the relevant provisions of the Criminal Procedure Code. Section 437, Criminal Procedure Code states:

"When, on examining the record of any case under S. 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 or 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 shows that some other offence, has been committed by the accused, such Judge or Magistrate may direct the inferior Court t