This is a petition in revision against the order of the District Magistrate directing the committal of the petitioners to take their trial before the Sessions Court, Cuddapah, for an offence under section 302 read with section 34, Indian Penal Code. The petitioners, seven in number, were charge-sheeted before the Stationary Sub-Magistrate, Pulivendla, for offences under sections 147, 148, 324 and 302, Indian Penal Code. After hearing the prosecution evidence, the Stationary Sub-Magistrate had come to the conclusion that no case was made out against the petitioners under section 302 or 34, Indian Penal Code and that the evidence disclosed only a lesser offence against them. So he framed charges for offences under sections 147, 148 and 324 and began to proceed with the trial of the case. Treating this as an order of discharge, so far as the graver offence under section 302, Indian Penal Code, was concerned, the prosecution moved the District Magistrate to revise the order of the Stationary Sub-Magistrate. The District Magistrate set aside the order of the Sub-Magistrate and directed the petitioners to take their trial before the Sessions Judge, Cuddapah, for the offences for which they were charge-sheeted by the police.

The present revision case is against the order of the District Magistrate. It is contended by Mr. Chinnappa Reddy in support of this petition that the District Magistrate had no jurisdiction under section 437, Criminal Procedure Code, to interfere with the order of the Stationary Sub-Magistrate as there was no discharge within the meaning of the section. According to him, so long as the proceedings are not terminated against the accused before the Magistrate, it could not be said that there has been a discharge of the accused of the graver offence as it is open to him to frame a charge for a more serious offence under section 347, Criminal Procedure Code, at a later stage. His contention seems to receive full support from a ruling of the Full Bench of the Allahabad High Court in Nahar Singh v. The State1. It was decided in that case that when a Magistrate before whom a person is accused of a major offence, framed a charge for a, minor offence it did not amount to discharge so far as the major offence was concerned, when the proceedings were still pending in that Court and therefore it was not competent to the Court of revision under section 437, Criminal Procedure Code, to direct the commitment of the accused to the Sessions in respect of the major offence.

Reliance is also placed by the learned counsel on the observations in Gand Appa Raza v. King-Emperor2. There a person was accused of an offence under sections 147 and 304, Indian Penal Code, before a Sub-Magistrate. The Magistrate framed a charge against the accused under section 147 and later on acquitted him of that charge. On revision the Sessions Judge ordered committal of the accused on charges under sections 147 and 304, Indian Penal Code. The accused took the matter in revision before this Court. The Bench which heard the revision held that the committal, so far as the charge under section 147, Indian Penal Code, was concerned, was illegal inasmuch as the accused was acquitted of that charge and so long as the order of the acquittal remains in force, section 403, Criminal Procedure Code, was a bar to the trial of the accused under that charge. But the committal as regards the charge under section 304, Indian Penal Code, was confirmed. The argument that a previous order of the District Magistrate refusing to entertain a revision petition in respect of the same matter prevented the Sessions Judge from re-opening it was repelled in the following words:

"Now it will be noticed that at the time the application was made there was no express order of discharge as to section 304, Indian Penal Code, nor could an order of discharge be implied under authority of Krishna Reddy v. Subbamma3, above referred to, as the trial had not come to a close as in that case