An order of discharge under Section 302, IPC, is a final order and not an interlocutory order, and a prima facie case for a charge under Section 302, IPC, can be established based on the evidence collected during the police investigation.

1. This revision petition under Section 401 of the Code of Criminal Procedure 1973 (shortly called the Code) read with Article 227 of the Constitution has been filed by the State for revising the order of the Sessions Judge, dated 24-6-1974. The Magistrate committed the respondents for trial under the provision of Sections 302/34 and Section 342 of the Indian Penal Code. The learned Sessions Judge, it appears, after going through the police record opined that it was not a case under Section 302, I.P.C. so as to frame a charge under that Section. According to him, the case was only one under Section 342, I.P.C. He further observed that the opinion of the medical officer was that the injuries mentioned in his report, dated 14-2-1974 could not have been possible by striking against protruding stones or rocks, etc. and they were caused by some weapon. This fact is to be established by the prosecution during the trial. It is to be determined during the trial whether the said injuries were simple injuries on grievous injuries. The offences under Sections 323, 325 and 326, I.P.C. are triable by a Magistrate and similarly the offence under Section 342, I.P.C, is also one triable by any Magistrate and, therefore, he sent the record of the case to the Chief Judicial Magistrate for trial according to law.

2. The learned Advocate-General contends that the Sessions Judge has discharged the accused for the offence under Section 302, I.P.C. for which they were committed by the Magistrate and that there was sufficient material evidence on the record to frame a charge under Section 302, I.P.C. and the learned Sessions Judge was wrong in holding that it was an offence under Sections 342 and 326, I.P.C.

3. A preliminary objection has been taken by the counsel for the respondents that it is an interlocutory order and that no revision under Section 401 of the Code is maintainable and for this proposition he has placed reliance on Bhupinder Kumar Bhatnagar v. State (1975 Cri LJ 1185 (Delhi)), wherein it has been held that an order framing the charge does not decide the question of guilt or the innocence of the accused. A charge merely puts him on notice as to the offences for which he is being tried. The order merely keeps the proceedings alive. Even if the order framing a charge is treated as an order declining to discharge the accused even then it does not amount to a final order. Further, it was held that even if it may not be open to the trial court to reconsider the order framing the charge against the accused person, it will not be a final order. It still remains as interlocutory order and by virtue of Sub-Section (2) of Section 397, the power of revision conferred on the High Court cannot be exercised in relation to such an interlocutory order. In that case the petitioners were committed by the Metropolitan Magistrate, Delhi, to take their trial in the court of Session and a charge had been framed against them for an offence under Section 376 of the Indian Penal Code. The petitioners filed the revision under the Code against the framing of charge against them. According to the petitioners there was no material on the record to make out a prima facie case under Section 376, I.P.C. A preliminary objection was raised by the learned counsel for the State against the maintainability of the petition under the provisions of the Code and it was pointed out that the order of the Sessions Judge framing charge against the petitioners was in the nature of an interlocutory order and that under Section 397(2) of the Code no revision lay against such an interlocutory order. It was in those circumstances that the High Court held that it was an interlocutory order and no revision, as stated before, was maintainable against the framing of the charge as it does not decide the question of guilt or innocence of the petitioners.

4. The present is a case where the respondents have been discharged under Section 302, I.P.C., and, in so far as the order not to fram