The Magistrate has no power to discharge the accused in cases exclusively triable by the Court of Session.

The complainant in P.R.C. No. 1 of 1974 on the file of the Judicial II Class Magistrate, Tiruthuraipoondi, has preferred this revision petition against the order of the learned Magistrate discharging respondents 1 to 6 (accused 1 to 6) holding that offences alleged against accused 1 to 6 are not triable exclusively by the Court of Session and that it did not warrant their committal under S. 209(a) Crl.P.C. and that no prima facie case had been made out against accused 1 to 6 so as to convert the preliminary register case as a calendar case and proceed against the accused.

2. The crux of the indictment of the complainant is as follows : The petitioner complainant preferred a private complaint against these respondents for offences under Ss. 147, 460, 307, 342 and 323 I.P.C., alleging that on 17-11-1973, at about 10-30 p.m. while the complainant and one Sivaraj were sleeping in the room in the Lorry Booking office at Nagapattinam, about 50 persons led by respondents 1 and 2 entered into the building and that accused 1 and 2 shouted that they could not live peacefully unless the petitioner was done away with, and with the intent to kill him, the first respondent punished him down while the second respondent kicked him and respondents 2 to 5 fisted him. Thereafter, at the instigation of respondents 1 and 2, respondents 4 to 6 tied the complainant with a rope and dragged him to the wharf. The first respondent told the other respondents that the petitioner should be taken to wharf and thrown into the sea. On seeing armed reserve constables in the harbour, accused 1 instructed the other accused to take the complainant to the godown of second accused, where he was locked. After some time, the police rescued the complainant on the information given by the complainant's brother-in-law, viz. one Mani, examined in this case as P.W. 7. Firstly, the case was taken on file by the Judicial II Class Magistrate, Nagapattinam, and copies of the complaint wee furnished to the accused on their appearance, and then it was transferred to the file of the Judicial II Class Magistrate, Tiruthuraipoondi, on 11-2-1974.

3. The complainant examined four witnesses including himself, of whom P. Ws. 1 to 3 were examined on 27-3-1974, and P.W. 4, the Civil Assistant Surgeon attached to the Government Hospital, Nagapattinam, was examined on 1-3-1974, i.e., after the new Criminal Procedure Code (Act II of 1974 came into force. (The Act came into force on 1-4-1974) The lower court passed the order of discharge on 6-6-1974.

4. As the question raised by the petitioner in this case is purely one of law, viz., as to whether the order of the learned Magistrate discharging the accused after the new Code came into force is legally sustainable or not, I think it is not necessary to go into discussion of the evidence adduced on the side of the complainant.

5. Mr. Masilamani, appearing for the petitioner, would mainly contend that after the introduction of the new Code, every committal enquiry which was pending under the old Code at the commencement of the new Code, should be dealt with and disposed of in accordance with the provisions of the new Code. Therefore, according to him, after the issue of process to the accused under S. 204, the Magistrate, before whom committal enquiry was pending, has no power as per the new Code to discharge the accused and as the case is one triable exclusively by the Court of Session, the Magistrate ought to have committed the accused to take the trial before the Court of Session. Besides this, he has also raised other contentions on the merits of the case touching upon the evidence adduced by the complainant, which, according to him, would warrant a committal. But, he did not seriously press the other contentions except the legal one.

6. Mr. N. T. Vanamamali, appearing for the accused, would urge that even under the new Code, a committing Magistrate can assess the evidence even in a committal enquiry and pass an order of discharge i