ORDER

Bennet, J. - This is an application in criminal revision on behalf of one Pt. Alopi Din, secretary of the District Board of Banda, against an order of the District Magistrate, dated 5th. September 1934. committing him for trial to the Court of Session along with three other persons Pt. Salig Ram, engineer of the District Board, Thakur Babu Singh, sub-overseer, and Suraj Prasad, a contractor, under Sections 120-B, 420, 477(a), Penal Code, in the case of all the accused, and Section 218, Penal Code, in the case of Alopi Din and Section 218/109, Penal Code, in the case of the three other accused. There was a complaint by B. Damodar Prasad, junior vice chairman of the District Board, against these four accused persons and the police made an investigation into the complaint and the case was prosecuted. When the prosecution began the prosecuting inspector addressed the Court and the Court passed the following order:

The Prosecuting Inspector in opening the case said that he wanted to prosecute all the accused under Sections 420, 468 and 120-B, I.P.C. and that there was no case u/s 218, I.P.C. The procedure will therefore be that of a warrant ease.

2. One of the points in revision is that this order shows that there was a withdrawal by the prosecuting inspector from the offence of Section 218, Penal Code. u/s 494, Criminal P.C. a public prosecutor may:

withdraw from the prosecution of any person either generally Or in respect of any one or more of the offences for which he is tried.

3. The claim is that there was a withdrawal. The word "offence" is defined in Section 4(o), Criminal P.C. as meaning

Any net or omission made punishable by any law for the time being in force.

4. Therefore a withdrawn by a public prosecutor is withdrawal from the prosecution of any person for any act or omission made punishable by any law; that is, the Public Prosecutor states that he does not want to prosecute for certain alleged acts or omissions. In the present case there was no such statement by the prosecuting inspector. He merely stated that there was DO case u/s 218, Penal Code. He did not state that there were any acts or omissions for which he did not sesire prosecution of the accused. He only gave his opinion that the evidence produced for the prosecution would not show a case u/s 218, Penal Code, I consider therefore that there was no withdrawal by the Public Prosecutor in this case. It is further clear that a withdrawal at the beginning of a case must come u/s 494(a), Criminal P.C. and would only amount to a discharge of the accused and it would lot come under Sub-section (b) a withdrawal after a charge has been framed, which produces the result of an acquittal.

5. The Magistrate proceeded to try the case as a warrant case and after the statements of accused he discharged Alopi Din, the secretary, and framed charges against the other three accused. The District Magistrate has taken up the case against Alopi Din under the provisions of Section 437, Criminal P.C. and he has considered the evidence in an order extending to 12 typed pages and he has come to the conclusion that Alopi Din and the other accused, should be tried by the Court of Session and he has committed them for trial to the Court of Session and has framed charges. Learned Counsel addressed me at considerable length on the merits of the case and he argued that this Court in revision could hear the case on its merits and decide whether there was sufficient material for these persons to stand their trial at the Court of Session or whether there was not. A great deal of evidence has been given in this case for the prosecution extending over 1591 pages of the record. This is a case of committal u/s 437, Criminal P.C. to the Court of Session. I do not think it necessary to decide whether it is open to this Court in such a case to go into the evidence for the prosecution and to come to a decision in the manner suggested. But I consider that it would be very unwise to do so in the present c