JUDGMENT

1. This is a reference by the Additional Sessions Judge of Sukkur who recommends that the committal by the First Class Magistrate of Kandhkot of seven accused persons charged with offences under Sections 147, 323 read with Section 149, Penal Code, and under Section 24, Cattle Trespass Act, should be quashed on the grounds that the offences were such as the Magistrate himself was empowered to try and which he could adequately punish. The Magistrate committed the case because it was a counter case to another of offences under Sections 148, 436, 323 and 324, Penal Code, read with Section 149, Penal Code, which the Magistrate had rightly committed to the Court of Session.

2. The Additional Sessions Judge is of the opinion that the discretion of the Magistrate in this matter of committal is limited by the provisions of Section 254, Criminal P.C., and that a Magistrate can only properly commit to the Court of Session when the offence is exclusively triable by a Court of Session or offences which the Magistrate cannot himself adequately punish. The Additional Sessions Judge relies on a case reported in Diwanchand v. Emperor A.I.R. 1914 Sind 94 he relies also on cases reported in Utlibai v. Emperor A.I.R. 1924 Sind 61 Emperor v. Allahabad A.I.R. 1930 Sind 145 Emperor v. Ghousbaksh A.I.R. 1937 Sind 32 and Emperor v. Waroo A.I.R. 1938 Sind 79 but in none of these cases was the Court called upon to consider a case such as this, where the reason for committal is that the counter case has necessarily been committed, and which is, in a way, merely an extension of the class of case dealt with in Ghani Yakub v. Emperor A.I.R. 1920 Sind 55 where the Court held that where in the course of the same transaction one accused is charged with offences triable exclusively by the Court of Session, and his co-accused are charged with offences triable by a Magistrate, all were rightly committed to the Court of Session. It may be explained that all the offences were part of the same transaction, but never: theless this case did not come within the provisions of Section 254, Criminal P.C., which is not exhaustive. It is the view of the Bombay High Court that the provisions of Section 347, Criminal P.C., are not controlled by the provisions of Section 254, Criminal P.C.

3. In Emperor v. Krishnaji Prabhakar A.I.R. 1929 Bom. 313 the offence was one under Section 124A, Penal Code, which is punishable with transportation for life, and was triable, according to Schedule 2, Criminal P.C., both by a Court of Session and by the Presidency Magistrate, and the Court was of the opinion that as the Offence was a serious one and the case was one of public importance, which should preferably in the public interest be tried by a jury, the case should be committed to the Sessions. The learned Judges pointed out, however, that each case must be dealt with on its own particular facts, and they did not mean to infer that every case punishable under Section 124A, Penal Code, should be committed to the Sessions Court, but agreeing with certain rulings of the Madras and Rangoon Courts, they took the view that Section 254, Criminal P.C., did not control Section 347 of the Code, and that it did not necessarily follow that a Magistrate must always try himself and could never commit a case which he was competent to try and which he could adequately punish. There might be other circumstances which could justify the committal of a case to the Court of Session. The learned Judges distinguished cases where offences are shown in the second schedule to be triable only by Magistrates, and by Magistrates and by Courts of Session, but the principle is the same. If Section 254, Criminal P.C., does not control Section 347 of the Code for the one purpose, it does not control it for another. The view of the Madras High Court is the same. In Crown Prosecuter v. Bhagavathi A.I.R. 1919 Mad. 907 Sadasiva Ayyar J. said (p. 85):

Then we have got Section 347 which gives very wide powers to a Magis