A Magistrate has no power to discharge an accused if the evidence at any stage of inquiry or trial discloses an offense exclusively cognizable by a Court of Session.

( 1 ) THIS revision is directed against order of Sri Chandra Prakash learned Sessions Judge moradabad dated 30-3-1981 in Criminal Revision No. 198 of 1980 by which the order of discharge recorded by Sri S. K. Samadhya, Munsif Magistrate III Moradabad in case No. 1031/9 of 78 was quashed and the learned Magistrate was ordered to proceed in accordance with law in the light of observations made by learned Judge in his order.

( 2 ) IT appears that these proceedings were initiated on complaint by Smt. Taufiqa Khatoon against the revisionist on 1st Sept. 77 Under Section 396 IPC in the court of C. J. M. Moradabad. Briefly stated the-allegations were that the revisionists were colluding with local police at Police Station moghalpura in Moradabad city; it was at their instance that on 6-8-77 while male members of the family of complainant were in lock up all these revisionists variously armed intruded the house of complainant at the dead of night and resorted to indis-scriminate looting; when the ladies etc. protested they were threatened with dire consequences; the revisionists also told to reduce them to status of prostitutes and to cut their noses etc. ; thus they ransacked the house and looted the property worth Rs. 5000/ -. A report about the occurrence was lodged at Police Station kotwali but it was not faithfully recorded; police did not take any action in the matter and so the complaint was filed in the court of Magistrate, Statement of Smt. Taufiq a complainant was recorded Under Section 200 and of Smt. Taiaba Khatoon was recorded Under Section 202 of cr. P. C. The revisionists were summoned Under Sections 148, 380 and 452 IPC Criminal revision No. 166 of 77 was preferred by respondent No. 2 against the aforesaid order as the revisionists were not summoned Under Section 395 IPC That revision was rejected on 9-2-1978 bv Sri S. K. Jain learned 6th Additional Sessions Judge, Moradabad with the observations that it was open to the Magistrate to record the evidence and to assess the same at the stage of framing the charge and if an offence Under Section 395 IPC was made out at that stage the revisionists could be committed to the Court of Session to stand their trial Under Section 209 Cr. P. C. Thereafter some more evidence was recorded by learned trial Magistrate including the cross-examination of informant and Summar Jahan; that evidence consisted of statements of smt. Azamat Jahan (P. W. 3, Nazakat, Rama Shanker constable (P. W. 5, Sri Rafat Ali (P. W. 6, and Ram Babu (P. W. 7 ). It was thereafter on 7-8-80 that Munsif Magistrate discharged the accused purporting to act Under Section 245 (2) of Cr. P. C. A revision against aforesaid order was preferred by respondent No. 2 which was allowed by Sri Chandra Prakash. It is Criminal revision No. 198 of 80. Aggrieved by this order revisionists have come up in revision before this Court.

( 3 ) ON behalf of revisionists the contention put forward was that the impugned order has undone the effect of the earlier order by Sri S. K. Jain. That order by Sri S. K. Jain dated 9-2-78 was an earlier order by a court of co-ordinate jurisdiction and operated as a bar to the order recorded by sri Chandra Prakash on 30-3-81. It was further maintained that if trial Magistrate had to summon the revisionists Under Section 395 IPC which was exclusively triable by Court of session entire evidence must have been recorded under proviso appended to Section 202 (2)Cr. P. C. when Magistrate chose to summon the revi-1982 Cri. L. J. /80 VII sionists for offences exclusively triable by himself there was no other stage left for recording the evidence except under Section 244 Cr. P. C. After recording the evidence under the aforesaid provision the accused could be discharged Under Section 245 (2 ). It was a valid discharge order when the magistrate was trying the case as a warrant case for offences well within his competence. There was no occasion for committal of the accused to the Court of Sess