Order of Magistrate not sustainable.

Madhusudan Rao, J.- This revision case is registered on a reference made by the learned Metropolitan Sessions Judge, Hyderabad, in Sessions Case No. 54 of 1979 on the file of his Court requesting that the committal of the case made by the IV Metropolitan Magistrate, Hyderabad, may be quashed.

2. The facts leading up to the reference are: The Inspector of Police, Chikkadapalli, Hyderabad, filed a charge-sheet against three accused alleging that they participated in three incidents forming the same transaction and that they are liable for punishment under sections 452 and 392 read with section 34, Indian Penal Code, in respect of one incident, under section 324 read with section 34, Indian Penal Code, in respect of another incident and under section 392, Indian Penal Code, in respect of the third incident. It was requested in the charge-sheet that, in the event of conviction, the three accused may be bound over under section 106, Criminal Procedure Code, besides being sentenced appropriately. It was further mentioned in the charge-sheet that the first accused has 12 previous convictions to his credit and the last conviction was in a case filed in the year 1975. The case was filed in the Court of the IV Metropolitan Magistrate, Hyderabad. On the appearance of the accuseed and after furnishing the necessary documents to the accused, the learned Magistrate converted the Calendar case into a Preliminary Register Case and committed the case to the Court of the Metropolitan Sessions Judge, Hyderabad, being of the opinion that the crime is grave and that the offence alleged by the prosecution is one punishable with imprisonment which may extend to 14 years under the second part of section 392, Indian Penal Code. When the matter came up before the Sessions Court, the learned defence Counsel contended that the committal of the case to the Court of Session was invalid and improper. After hearing the argument on both sides, the learned Sessions Judge has referred the question of the validity of the committal to this Court being of the" view that there is a conflict on the question in the decisions of the High Court.

3. The Magistrate passed the order of committal in the exercise of the powers conferred on a Magistrate under section 323, Criminal Procedure Code and relying on a decision of this Court in A.K. Joshi v. State of Andhra Pradesh1.

4. Sri Veerabhadra Rao, the learned Counsel for the accused No. 1 contends that the committal is bad in so far as the Magistrate committed the case only because he was of the opinion that he could not award adequate sentence and that, in such cases, he had to proceed only under section 325, Criminal Procedure Code, which is specifically enacted to meet such a situation. In support of this submission, reliance is placed on M. Agamma v State of Andhra Pradesh2. Before dealing with case relied on by the learned Magistrate and the other case cited by the learned Counsel for the accused, it may be necessary to examine the relevant provision in the Code:

“Section 323.-If, in any inquiry into am offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing the judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions herein before contained.

Section 324 .-(1) Where a person, having. been convicted of an offence punishable under Chapter XII or Chapter XVII of the Indian Pend Code (XLV of 1860) with, imprisonment for a term of three years or upwards, is again accused of any offence punishable under either of those chapters with imprisonment for a term of three years or upwards, and the Magistrate before whom the case is pending is satisfied that there is ground for presuming that such person has committed the offence, he shall be sent for trial to the Chief Judicial Magistrate or committed to the Court of Session, unless the Magistrate is competent to try the case and is of opinion that he ca