Shambhu Prasad Singh, J.

This application under Section 482 of the Code of Criminal Procedure has been made by the accused persons for setting aside an order committing a criminal case to the court of session mainly on the ground that its counter-case had already been committed to the court of session. The counter-case was a case instituted on a first information report for offences under Sections 147, 148, 302, 307 and 324 of the Indian Penal Code. The offences under Sections 302 and 307 of the Indian Penal Code being exclusively triable by the court of session, after receipt of the charge-sheet, the Magistrate had no option but to commit the case to the court of session under Section 209 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code). The first information report was lodged on 26th of August, 1973. One of the accused in that case Dhrub Narain Rai filed a petition of complaint on 27th of August, 1973, making allegations against the petitioners for offences under Sections 147, 148, 323 and 379 of the Indian Penal Code. None of these offences is an offence triable by a court of session under the first schedule to the Code rather they are triable by Courts of Magistrates. This criminal miscellaneous in the first instance came up for hearing before a learned single Judge of this Court, who by his order dated 31 st of March, 1978, referred it to a Division Bench for hearing.

2. Under the Code a case is to be committed to the court of session under Section 209 thereof which runs as follows :-

"209. When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall-

(a) commit the case to the Court of Session;

(b) subject to the provisions or this Code relating to bail, remand the accused to custody during and until the conclusion of the trial;

(c) send to that Court the record of the case, and the documents and articles. if any, which are to be produced in evidence;

(d) notify the Public Prosecutor of the commitment of the case to the Court of Session."

Under the Code, no evidence is to be taken in a commitment proceeding. In a case instituted on a police report, the commitment is to be made on the basis of the charge-sheet and In a case instituted otherwise, the commitment is to be made on the basis of the order taking cognizance after evidence is recorded of the prosecution witnesses without any cross examination on behalf of the accused in an inquiry under Section 202 of the Code Section 207 A of the Code of Criminal Procedure, 1898 (herein after referred to as the old Code) provided for procedure to be adopted in commitment proceedings, instituted on police report. Section 208 to 213 of the old Code provided for procedure to be followed in a commitment inquiry in cases instituted otherwise than on a police report and in committing the accused to the court of session, Section 207 of the old Code read as follows :-

"207. In every inquiry before a Magistrate, where the case is triable exclusively by a Court of Session or High Court, or, In the opinion of the Magistrate, ought to be tried by such Court, the Magistrate shall,-

(a) in any proceeding instituted on a police report, follow the procedure specified in Section 207 A; and,

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

The Code does not re-enact any provision similar to Section 207 of the old Code Section 207 of the Code provides for supply to the accused of copy of police report and other documents. There is no provision at all in the new Code for commitment to the court of session similar to that part of Section 207 of the old Code, which stated "or in the opinion of the Magistrate ought to be tried by such court", except in section 323 with which I shall deal with hereafter. These words are not there in Section 209 of the Code. It has b