JUDGMENT

Yorke, J. - This is a reference by the Assistant Sessions Judge of Etawah recommending that this Court do set aside u/s 215 an order made by a Magistrate committing a case to the Court of Session for trial. Put shortly, what happened was that there were cross cases, and in one case a charge was framed u/s 307, Penal Code and, therefore, the case had to be committed for trial to the Sessions Court. In the cross case the offences in respect of which the learned Magistrate thought it desirable to frame charges appeared to him to fall under Sections 147 and 323/149, Penal Code and Section 22, Cattle Trespass Act. All of these were offences triable by a Magistrate of the first class, but nonetheless the learned Magistrate committed the accused for trial to the Sessions Court on the ground that as he had committed the cross case to the Sessions Court, the interests of justice demanded that this case should also be committed to the said Court. The learned Assistant Sessions Judge relying upon the decision in King-Emperor v. Dharam Singh ('06) 3 A.L.J. 14 expressed the opinion that the question of adequate punishment (vide Section 254, Criminal P.C.) arises only in cases where the offences are triable by the Magistrate and also by the Court of Session and not where the offences are triable exclusively by the Magistrate. He remarked that the maximum sentence of imprisonment which could be given was only two years and, therefore, there could be no question that the learned Magistrate could give an adequate punishment. The learned Assistant Sessions Judge failed to note that u/s 147 the amount of fine which may be inflicted is unlimited and therefore, it might conceivably be the case that the Magistrate might think himself unable to inflict an adequate sentence, whereas an adequate sentence could be inflicted by the Sessions Court. That point has been noted in a Calcutta case to which I shall refer later. The learned Assistant Sessions Judge referred to some other cases and being of opinion that the commitment was illegal, he made a reference to this Court.

2. On the matter coming up, the attention of one of us was drawn to a recent decision of my brother Mulla in an unreported case, Ramlal Singh v. Emperor Criminal Appeal No. 398 of 1942 in which he held that having regard to the provisions of Section 28, Criminal P.C., a Magistrate properly empowered is competent to commit any case for trial to the sessions. We have now had the advantage of making a regular survey of the cases on this point so far as we could trace them. As my learned brother noted in referring this matter to a Bench, the attention of Mulla J. in the case above-mentioned does not appear to have been drawn to the provisions of Section 254, Criminal P.C. He discussed the matter with refer-once only to the provisions of Sections 28, 206 and 207 of the Code. With all respect I am of opinion that in the light of the provisions of Section 254 of the Code and the previous decisions of this Court the view expressed by Muila J. in the unreported case ought not to be followed. An interesting point about that case is that the point was not taken in a reference or application for the setting aside of a commitment but in appeal against the conviction. It was urged that as the appellants in this Court had been charged under1 Sections 147, 352 and 323, there was no case triable by the Court of Session and hence the-commitment to that Court by the learned Magistrate was illegal. Mulla J., after a consideration of Sections 28, 206 and 207, held that. Magistrates had a wide discretion and that a case involving an offence not exclusively triable by the Court of Session might yet be committed for trial if the Magistrate was of opinion that it ought to be tried by the Court of Session. Hence he held that the commitment could not be said to be invalid or illegal and the conviction could not be set aside on that ground.

3. Exactly the same point came before another learned Judge of thi