J.M.SHELAT - (1.) * * * *
(2.) Section 437 inter alia provides that when on examining the record of any case under section 435 or otherwise the Sessions Judge 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 the Sessions Judge may cause him to be arrested and may thereupon instead of directing a fresh inquiry order him to be committed for trial upon the matter of which he has been in the opinion of the Sessions Judge improperly discharged. There are two provisos to sec. 437 but we do not propose to cite them here as they are not relevant for the purposes of this inquiry.
(3.) Mr. Nanavaty appearing for the applicants contended- (1) that an accused cannot be said to be improperly discharged on a mere refusal by a Committing Magistrate to commit him to the Court of Session. (2) that if an accused is charged of two distinct offences and if the Magistrate were to frame a charge or commit him in respect of one offence only to the Court of Session then there would be a discharge in respect of one offence. But it an accused is charge-sheeted for a certain offence and on the same facts and evidence the Magistrate frames a charge in respect of a lesser offence there would be no discharge of such an accused as the accused is not release or set at liberty but has still to stand a trial. (3) that section 437 of the Code must be read in conjunction with section 207A(6) and if so read the word discharge in both these section must be given the same meaning. The word unless in section 207A(6) and section 209(1) indicates that discharge must mean a total discharge of an accused from an offence which can only be accomplished by setting him at liberty in respect of that offence. Therefore so long as the Magistrate frames a charge though on a lesser offence as the learned Magistrate has done in this case there would be no discharge within the meaning a section 437 much less an improper discharge. (3) that the word discharge used at various places in the Code must have and be given the same meaning; and lastly (4) that section 347 shows that the Magistrate can even after he proceeds to try an accused on a lesser offence change his mind and commit even at that stage the accused to the Court of Session for a graver offence indicating that framing a charge on a lesser offence and refusing to commit him to the Court of Session in respect of a graver offence does not amount to discharge. ;