DESAI, J.

( 1 ) THIS is an application in revision against an order of the Additional Sessions Judge of Agra cancelling a charge framed against the applicant under Section 304a, Penal Code, by a magistrate and directing him to be committed to the Court of Session to stand trial on the charge of Section 304, Penal Code. The learned Sessions Judge claims to have exercised the powers conferred by Section 437, Criminal P. C. , and the question that we have to decide is whether those powers could have been exercised by him in the circumstances of the case In obedience to the learned Judges order, the learned Magistrate has framed a charge under Section 304, Penal code, and committed the applicant to the Court of Session. No prayer has been made by the applicant for the quashing of the commitment. It does not matter, however, inasmuch as if the order under revision is set aside, the consequential order can be passed by us quashing the commitment.

( 2 ) THE applicant was prosecuted by the police under Section 304, Penal, Code for causing the death of a barber by shooting at him. The learned Magistrate commenced proceedings under chap. 18 of the Code. He recorded the evidence for the prosecution and also defence evidence and then framed a charge under Section 304a, Penal Code. He did not pass any order explaining why the charge was framed under Section 804a, Penal Code, and not under Section 304, Penal code. The charge-sheet is the only document which shows what was done in the case; the order-sheet also contains no order of any kind. Joti, a son of the deceased barber, went up in revision against the framing of the charge to the learned Sessions Judge. The learned Sessions judge passed the order under revision, treating the not framing of a charge under Section 304, penal Code as discharge of the applicant. It is important to note that the trial of the applicant under Section 304a, Penal Code was pending in the Court of the learned Magistrate on the date on which the learned Sessions Judge passed the order, and the trial is now pending in the Court of the learned Sessions Judge. Another important, fact to be noted is that there was only one offence alleged against the applicant, namely, that of causing the barbers death by shooting. He is accused of whatever offence is constituted by the act and of no other offence.

( 3 ) THE relevant portion of Section 437, Criminal P. C. is as follows :

"when. . . . the Sessions Judge. . . considers that such case is triable exclusively by the Court of session and that an accused person has been improperly discharged by the inferior Court, the sessions Judge. . . may cause him to be arrested, and may thereupon,. . . order him to be committed for trial upon the matter of which he has been. . . , improperly discharged. "

The sole question for decision is whether the applicant was discharged by the learned Magistrate or not. The learned Magistrate being of the view that the act alleged against the applicant, constituted the offence of Section 804a, and not of Section 304, Penal Code, charged him under section 304a and refrained from charging him under Section 304, Penal Code.

( 4 ) THE applicant has admittedly not been expressly discharged. It is contended by the learned government Advocate that not framing a charge under Section 804, Penal Code, was an implied discharge. Whether it was or not can be ascertained in two ways. The Code exhaustively states the circumstances in which an accused can be discharged and one way is to see if any of those circumstances existed in this case. The other way is to see if the learned Magistrates framing the charge under Section 304a, Penal Code, instead of under Section 804, Penal Code, produced the effect normally produced by discharge.

( 5 ) WHAT amounts to discharging an accused is not explained in the Code. All that the Code lays down is that in certain circumstances an accused must be discharged. It follows as a corollary that there is no discharge in the absen