If the Magistrate finds the case of lesser offence he can keep the case himself.

This petition under section 482, Criminal Procedure Code is filed by the Public Prosecutor for quashing the order passed by the Judicial First Class Magistrate, Kanigiri, in P.R.C. No. 8 of 1978 on the file of his Court and also the order of the Sessions Judge, Ongole in Crl.R.P. No. 4 of 1979 on the file of his Court confirming the order of the Magistrate.

2. The Station House Officer, Pamur Police Station, filed a charge-sheet against the respondent-accused in the Court of the Judicial First Class Magistrate, Kanigiri under sections 147 , 323 and 307, Indian Penal Code. After taking the case on file as P.R.C. No. 3 of 1978 the Magistrate issued summonses to the respondents-accused for their appearance in the Court. After appearing before the Court and on being furnished with the documents referred to in section 207 , Criminal Procedure Code, the respondents filed an application submitting that the allegations in the First Information Report, the facts contained in the Medical Certificate and the investigation statements of the witnesses cited in the charge-sheet do not disclose an offence under section 307, Indian Penal Code and that the case is not one triable exclusively by the Court of Session. After due notice to the prosecution and hearing arguments on behalf of the prosecution and the respondents, the learned Magistrate accepted the submission of the respondents and accordingly converted the Preliminary Register Case into a Calendar Case for offences triable by him. The prosecution preferred a revision before the Sessions Judge against the order of conversion contending that the facts disclosed an offence punishable under section 307, Indian Penal Code. The learned Sessions Judge reviewed the record and agreed with the finding of the Magistrate to the effect that the material on record did not disclose an offence punishable under section 307 , Indian Penal Code but merely an offence punishable under section 324, Indian Penal Code and accordingly dismissed the revision.

3. The learned Additional Public Prosecutor does not question the merits of the finding of the Magistrate or the Sessions Judge. He assails the legality of the action of the learned. Magistrate in hearing arguments after registering a Preliminary Register Case and converting the Preliminary Register Case into a Calendar Case. His contention is that under the new Code of Criminal Procedure, preliminary enquiry has been dispensed with and so, when a Magistrate takes cognisance of an offence triable exclusively by a Sessions Court, it is not open to him to make any enquiry even in regard to the nature of the offence. According to the learned Additional Public Prosecutor, under the new provision as contained in section 209 , Criminal Procedure Code, the Magistrate has to straight way commit the case to the Court of Session and it would be for the Sessions Judge to examine the merits and discharge or convert the case as provided in sections 227 and 228, Criminal Procedure Code.

4. The learned Counsel for the respondents, Sri B. Srinivasamurthy, contends that the order of the Magistrate is legal and proper and that even under the new Code, the Magistrate has jurisdiction to convert a Preliminary Register Case into a Calendar Case.

5. To appreciate the contentions, it may be necessary to examine the relevant provisions of the new Code of Criminal Procedure and they will be extracted hereunder to the extent necessary.

“Section 190 (1): Subject to the provisions of this Chapter, any Magistrate of the first class and any Magistrate of the Second Class specially empowered in this behalf under sub- section (2), may take cognizance of any offence-

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts.

Section 204 (1): If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be……

(a) a summons case, he shall issue the summons for the attendan