JUDGMENT

Waliullah, J. - This is a reference by the learned Sessions Judge of Orai, recommending that an order of commitment made by a Magistrate of the first class be quashed and that the Magistrate be directed to proceed with the trial of the case. This case came up before one of us but in view of the importance of the questions involved in it, and further in view of conflicting authorities on these questions it has been referred to a Full Bench.

2. It appears that on 13th November 1945, in the after-noon at about 3 P. M. a fight occur, red between two sets of villagers of village Umrar, P. Section Orai, District Jalaun. As a result of injuries received in the fight one Lalloo Ahir lost his life. One Shyam Behari filed a complaint against four brothers viz., Matoley, Lalloo, Hira Lal and Har Dayal u/s 323, Penal Code, read with Section 24, Cattle Trespass Act. Under; orders of a Magistrate police investigation followed as a result of which a case against Matoley, Hira Lal, Lalloo and others u/s 323, Penal Code, read with Section 24, Cattle Trespass Act, was sent up to the Court of the Magistrate for trial. There was also a cross-case against Shyam Behari and Ors., under 3. 304, Penal Code, in respect of the death of Lalloo. The learned Magistrate committed Shyam Behari and Ors. to the Court of session, to stand their trial for an offence u/s 304, Penal Code. Subsequently on 4th June 1946, the learned Magistrate committed Matoley, Hira Lai and Har Dayal, the accused in the cross-case also, to the Court of Session, to stand their trial u/s 323, read with Section 24, Cattle Trespass Act. The only reason for committing Matoley and others to the Court of Session, was that it was a cross-case to the case u/s 304, Penal Code, against Shyam Behari and others which had already been committed to the Court of Session.

3. Following a decision by a learned single Judge of this Court as well as a similar decision:by a learned Judge of the Madras High Court, the learned Sessions Judge has expressed the view that the commitment of Matoley and others to the Court or Session, was bad in law. He has referred the case to this Court with the recommendations mentioned above.

4. The main question which we have to decide is whether the order of commitment of Matoley, Hira Lal and Har Dayal to the Court of Session in the circumstances of the present case is a valid order. At the very outset it must be observed that the question is not free from difficulty and there is a serious conflict of judicial opinion on the point.

5. First of all I proceed to examine the cases decided by this Court which have been cited before us.

6. (i) The first case to be noticed is the ease of Empress v. Behari and Ors. 1886 A. W. N. 256. It was a reference by the Sessions Judge recommending that the commitment of Behari and others to the Court of Session for trial on a charge u/s 143, Penal Code, be quashed, and the Magistrate be directed to try the case himself, There were two cross-cases one u/s 147 and Section 304, Penal Code. This was committed to the Court of Session. The cross-case was one u/s 143, Penal Code, only. The learned Magistrate professing to exercise the discretion vested in him by Section 207, Criminal- P. C, expressed the opinion that the case u/s 143, Penal Code, ought to be tried by the Court of Session.

7. Dealing with the reference Edge C. J. expressed himself thus:

A Magistrate should not Bend up for trial by the Court of Session cases which the Magistrate has jurisdiction to dispose of, unless there be some good cause for sending such cases to the Court of Session, as for instance, if the Magistrate considers the punishment which he can award would be inadequate.

He went on to observe that a Magistrate had a discretion u/s 207, Criminal P. C, and such discretions, when exercised by him, are not lightly to be interfered with by him. Eventually as there was no point of law involved in the case, the commitment was not quashed u/s 215, Criminal P. C.

8. (ii) Ki