JUDGMENT

Kendall, J. - This is an application for the revision of an order of the Sessions Judge of Bareilly parsed in the following circumstances. Four persons were charged before a first class Magistrate with offences u/s 328, Indian Penal Code. Two of them were convicted under that section and sentenced to terms of imprisonment and the other two were acquitted because the Magistrate considered that the evidence against them fell short of absolute proof. The complainant in the case applied to the Sessions Judge for revision of the order of acquittal, and the two persons who had been convicted also appealed against their convictions and sentences, and in the order with which I am now concerned the Sessions Judge allowed the revision and ordered that the two present applicants Sukh Lal and Bhola should be committed to Sessions on a charge u/s 308, Indian Penal Code. The Sessions Judge remarked:

All the four accused persons are alleged to have assaulted Mindhai at one and the same time and three of them were armed with spears. Although it may not be possible to infer that they intended to kill Mindhai, the nature of the injuries and the manner of the assault do indeed show that they intended to cause such bodily injuries on him as were likely to cause death and in the circumstances the proper charge to frame against them was one u/s 308, Indian Penal Code.

2. He has discussed the evidence to a certain extent and he has also remarked that two of the accused persons (i.e. the present applicants) have been acquitted without sufficient reasons. But the main cause of his order is that the Magistrate should not have disposed of the case himself but should have committed it to Sessions.

3. It has been argued by Mr. Aziz that the order of the Sessions Judge is an illegal one. Under Clause (4) of Section 403 of the Criminal Procedure Code, a person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged, and it is freely admitted by Mr. Aziz that the mere fact that the two applicants have been acquitted of offences under Sections 323 and 326, Indian Penal Code, will not save them from being tried on the same evidence for an offence under

4. Section 307, Indian Penal Code, i. e., an offence of attempted murder, which the Magistrate who has acquitted them was not competent to try. The argument is, however, that the Sessions Judge is not empowered by either Section 436 or 137 or any other section of the Criminal Procedure Code to set aside an order of acquittal, or to order the commitment of the applicants for trial for an offence in respect of which no order of discharge has been pronounced. I need not now consider the question of Section 436 because the order of the Sessions Judge purports to have been passed u/s 437, Criminal Procedure Code and under that section the Sessions Judge:

On examining the record of any case under 8. 435 or otherwise, may, if he 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.... order him to be committed for trial upon the matter of which he has been.... improperly discharged.

5. In the present case no express order of discharge of an offence u/s 307 or Section 308, Indian Penal Code, was pronounced or recorded by the Magistrate, but the record shows that the Police Report on which the case was instituted in the Court of the Magistrate quotes Section 307 together with Section 326 as the appropriate section of the Code under which the accused are to be prosecuted. There is nothing in the order of the Magistrate to show that he consciously considered whether Section 307 would be applicable to the case against the accused, and it