JUDGMENT

Gyanendra Kumar, J. - Manna Lal complainant opposite-party had filed a complaint against Bishwanath and Kashi Palam Nadar under Secs. 406, 420 and 379 of the Indian Penal Code. The case was transferred to the court of Sri N. K. Gupta, Special Magistrate 1st Class, Kanpur who summoned the accused and recorded the statements of prosecution witnesses. The accused were examined on 17-7-1963. Both the parties filed their respective documentary evidence as well. However, after considering the evidence of the prosecution and the statements of the accused the trial Magistrate was of the opinion that there was no ground for presuming that the accused had committed the offence levelled against them, so he found that no case against the accused had been made out which could warrant their conviction. Accordingly by his order dated 7-8-1963 the Magistrate discharged the two accused Bishwanath and Kashi Palam Nadar of the offence mentioned in the complaint. This was evidently done under Sec. 253 of the Code of Criminal Procedure.

2. Being aggrieved against the aforesaid order of the trial Magistrate the complainant went up in revision to the learned Sessions Judge who allowed the same by his order dated 3-4-1964. The learned Sessions Judge found that the prosecution theory had been prima facie established and that on the face of the record the case had been made out against the accused persons. In the end the learned Sessions Judge passed the following operative order:

"The case is sent back to the trial Magistrate for taking up the case from the stage at which it was left. Charge shall be framed and then it shall be concluded according to law."

3. Accused Kashi Palam Nadar has now come up in revision to this Court and has challenged the powers and jurisdiction of the Sessions Judge to pass the above quoted order in his revisional jurisdiction. The impugned order of the Sessions Judge was obviously passed under Sec. 436, Cr. P. C., the material portions whereof read as under: -

"On examining any record under Sec. 435 or otherwise .... the Sessions Judge may direct .... any of the Magistrates subordinate to him to make .... further inquiry into the case of any person accused of an offence who has been discharged."

4. From the perusal of the record it is quite evident that the Magistrate had already taken the evidence produced by the prosecution and had further examined the accused. Therefore, a stage had reached when he could either frame a charge under Sec. 254, Cr. P. C., if a prima facie case had been made out against the accused, or else discharge the accused under Sec. 253(1), Cr. P. C. if he found that no case had been so made out against them.

5. I am afraid the only thing which the learned Sessions Judge could do under the circumstances was to send back the case to the trial Magistrate with the direction to make further inquiry into the complaint and then proceed according to law. He had no jurisdiction to direct the Magistrate necessarily to frame a charge against the accused and then conclude the case after observing the procedure laid down in Secs. 255 and 256 till he finally convicted the accused or recorded a finding of acquittal under Sec. 258, Cr. P. C.

6. Accordingly I allow this revision in part, set aside the operative portion of the order of the Sessions Judge and direct that trial Magistrate shall make further inquiry into the complaint as well as the case of the accused and proceed according to law.