Modi, J. - (1.) THIS is an application in revision by one Laxmandas and has arisen under the following circumstances.
(2.) MST. Tulcha whose age is slated to be about fourteen years at the time the incident, out of which this revision arises, occurred, was living with her uncle Balaji in Barmer as her father and mother had both died. The present petitioner, Laxmandas, is her first cousin who lived in a separate house and it is said that he also looked after MST. Tulcha during Balaji's absence. Her younger sister, Girja, also lived with her. The opposite parties Hiralal, Lala and MST. Shanti also lived in Barmer. Shanti is the maternal aunt of Hiralal; and Lala appears to be a friend of his. Balji's house is situate near Hiralal's and is said to be about five minutes' walk from the latter. MST. Shanti's house is situate close to the house of Hiralal and there are just two houses in between them, one, of Purushottam (who is the brother of Shanti's husband) and the other of Chhaganlal, and the last-mentioned house is said to have been lying vacant The prosecution story is that on the 9th January, 1952, at about 4 P. M. MST. Shanti went up to Balji's house where MST. Tulcha was and asked her to accompany her as MST. Dami (Purushottam's wife) had urgently wanted her. It may be mentioned here that MST. Tulcha's uncle Balji had gone away to Ahmedabad in those days and so with MST. Tulcha were living his widowed daughter Daru and her own sister Girja only Both these also happened to be away at the time for one reason or another and so MST. Tulcha was reluctant to accompany MST. Shanti in their absence. MST. Shanti, however, pressed her to go whereupon they left together. On the way they met MST. Rana, MST. Tulcha's mausi Rana asked where she was going and MST. Shanti replied that she was taking MST. Tulcha to MST. Dami who had wanted her. They went to Dami's house which was however, closed. MST. Shanti suggested that MST. Dami might be in Chhaganlal's house and they might look her up there. Chhaganlal's house, as already stated above, is adjacent to Dami's house. As soon as MST. Tulcha looked into Chhaganlal's house, Hiralal who was there pushed her inside and MST. Shanti closed the door from outside, and thereafter Hiralal asked MST. Shanti to go away. Hiralal then pulled her into a room and Lala also followed him. It is said that Lala asked MST. Tulcha to wear the bridal clothes that were lying there. The girl refused. Lala then stripped her of her orna and asked her to put on the new lahanga and threatened that if she did not do so, he would himself tie it no her She then put on the lahanga and Hira put a dupatta on her. The girl was also forced to wear some bangles, which were lying there by Hira asked the girl to put her hand into his Hira asked the girl to put her hand into his in taken of marriage. The girl is said to have completely refused whereupon Hira used criminal force against her. Hira also asked her to take phera or rounds with him to which also she no. Then Hira asked Lala to bring a photographer and Lala left. When Lala came back, one Umeda had also come within and a chunri and a mod had also been brought. They tried to put the mod round her head but MST. Thulcha did not permit them to do to. The photographer also arrive a later and a photo was taken. The prosecution story further is that, shortly after, MST. Shanti and Dami and Purushottam came and inquired whether the work had been done. Hira replied that the girl was obliterate. They said, however, that Hira need not be impatient and that every thing would be all right, After about half an hour, one Dwarka came inside and when Hira told him that the girl was still refusing to marry him, Dwarka suggested that he might take her to his own house. MST. Tulcha is version then is that Hira told her that since she was not agreeable to marry him, he would leave her at her house and that she might accompany him. Hira's house was, however, next-door and as they were passing in front of it. Hira pushed her inside and closed the door. There was no one inside the house. After about five minutes of their having gone in, some body knocked at the door and asked it to be opened. Hira opened the door and the person who came in was Girdhari. The latter rebuked Hira for what he had done, at which Hira is said to have replied that he had been mis-guided. Soon-after Laxman and Gordhan entered Hira's house and thereafter they took her to her house. This is in brief the story related by MST. Tulcha in the committing court. The first report of the occurrence was present-ted by Laxman to the Superintendent of Police, Barmer, on the next day, that is, in the evening of the 10th January, 1952. This reached the police station on the 11th January 1952. The Station House Officer of the Barmer Police Station then took up the investigation. Ex. P-5 is the list of clothes and certain other articles which MST. Tulcha was made to were by Hiralal and Lala. This consists of a new lahanga and a banarsidupatta and a large number of bangles. Ex. P. 6 is the list, partly of old clothes of MST. Tulhca for which she had changed the new ones and partly of certain other articles, a new chundri and a mod, a piece of white cloth and moli etc. all of which were recovered from Chhaganlal's house. The police challenged Hiralal, Lala and MST. Shanti under sec. 366 I. P. C. in the court of the Extra Magistrate, Barmer. The Magistrate proceed under Chapter XVIII of the Code of Criminal Procedure and eventually held that no case was made out against MST. Shanti and Lala and, therefore, discharged them under sec. 209 Cr. P. C. As regards Hiralal the Magistrate framed charges against him under secs. 342 and 354 I. P. C. It appears that the Magistrate was of the opinion that the offence of kidnapping was not a continuing one and that it had become complete long before MST. Tulcha was detained by Hiralal and perhaps it was this view which induced the Magistrate not to from a charge against Hiralal under sec. 366 I. P. C. although it may be pointed out here that he did not say in so many words that he was discharging him so far as the offence under sec. 366 was concerned. Thereafter the present petitioner Laxman and the State went in revision to the Sessions Judge, Balotra. The latter has also upheld the order passed by the Magistrate and this has led to the present revision. It is contended on behalf of the petitioner that the learned Magistrate had improperly discharged all the accused under sec. 366 and Lala, and Mst. Shanti altogether, and that in doing so he had grossly usurped the functions of the court of Session, as the offence under sec. 366 I. P. C. was exclusively triable by the latter court and not by the Magistrate. It is further contended that so far as the learned Session Judge was concerned, although he had, before dealing with the case, set forth the right principle in his judgment, he had fallen into the same mistake which the Magistrate perpetrated and that there was sufficient evidence to make out a prima facie case against the accused under sec. 366. It is therefore, prayed that this Court should set aside the aforesaid orders and direct the committal of the accused to the court of session for proper trail according to Jaw. Learned counsel for the opposite parties raised two preliminary objections. The first is that the present revision has arisen out of a prosecution by the State, and Laxman who is a private party, although a relation of Mst. Tulcha, has no locus standi to file the revision The second objection is that the Magistrate had not passed any order of discharge under sec. 366 so far as the accused Hiralal was concerned and that a trial was actually going against him under secs. 342 and 354 I. P. C. and, therefore, this Court had no jurisdiction to pass any order against him in the midst of the trial. Reliance was placed for this submission on Nahar Singh vs. The State (l ). It was, further contended that in no case the order of the trial Magistrate so far as Hiralal was concerned should be interfered with and his trial should be allowed to go on leaving it to the Magistrate to deal with him according to law and it was suggested that there was nothing to prevent him, if eventually he came to the conclusion that a case against Hiralal under sec. 366 was prima facie proved, from committing him to the court of session under sec. 347 Cr. P. C. As regards the first objection referred to above, the true position seems to me to be this. The petitioner cannot claim to be heard as a matter of right in revision and, ordinarily, in a case launched by the State it is for the State to pursue its remedy against the order sought to be attacked. This does not mean, however, that the hands of this Court are tied, and it is perfectly open to this Court to receive information reading a particular matter from any person and thereupon to decide whether in the circumstances of a particular case, any interference on its part is called for or not. Having regard to all the facts and circumstances, which I do not feel called upon to state at this juncture, I have come to the conclusion that this revision need not and should not be thrown out on this score only. I next turn to the second objection which appears to be far more serious. A good deal of controversy was raised in this Court as to whether the order passed by the Magistrate with respect to the opposite party Hiralal amounts to an order of discharge within the meaning of sec. 209 Cr. P. C. On the side of the opposite parties, it was strenuously contended that the order with respect to Hiralal was not an order of discharge at ail within the meaning of sec. 209 Cr. P. C. and, therefore, it was not a case of an improper discharge and it was further contended as an extension to the same argument that the case against Hiralal was pending and no interference with it should be made by this Court at this stage. Now, the question whether where an accused is sent up for trial by a graver charge which is exclusively triable by a court of session and the Magistrate omits or declines to from such a charge but chooses to proceed against him on a minor charge which falls within his own jurisdiction, his omission or refusal to from a graver charge against the accused amount to a discharge or an implied discharge is be set with considerable difficulties and has been the occasion of a sharp conflict of opinion in our High Courts. A Full Bench decision of the Allahabad High Court in Nahar Singh vs. The State (1) has adopted the view that where a person is accused by the complainant for a major offence and that court frames a charge for a minor offence, the prosecution being for a single offence, the accused cannot be said to have been discharged and the Sessions Judge is not competent to direct commitment in respect of the major offence under sec. 437 Cr. P. C. Desai J. who delivered the main judgment has gone to the length of holding that: - "even if the Magistrate writes out a detailed order giving reasons for framing a charge for minor offence and for not framing a charge for the major offence and even if he says that he discharges the accused of the major offence, there is no discharge. " The view which seems to have prevailed with the learned Judges of the Allahabad High Court is that the Criminal Procedure Code does not contemplate any discharge in the case of a trial for a single offence where the accused is still being tried on the same facts for a less serious offence. In other Words, in such a case there can be only an absolute discharge or none at all. It was, therefore, held that the learned Session Judge in that case was not competent to entertain the revision and his order that the accused be committed for a trial under sec. 302 Penal Code, the Magistrate having framed a charge under sec. 304 A only, was set aside as being incompetent. On the other side of the line is the decision of the Madras High Court in In re Nalla Baligadu (2) which is also a Full Bench case. The learned Judges of the Madras High Court have emphatically expressed themselves against the Allahabad view and held that where under sec. 209 Cr. P. C. a Magistrate finds that there are not sufficient grounds for committing the accused for trial and directs such person to be tried before himself or some other Magistrate, such order amounts to an implied discharge so far as the graver offence is concerned, and, therefore, the revisional powers under sec. 437 can be exercised. It appears to me that the same view is shared by the Nagpur High Court in Ganga Datta vs. Emperor (3) by the Lahore High Court in Sultan Ali vs. Emperor (4), by the Sind Judicial Commissioner's Court in Khanu vs. Emperor (5) and Shambhooram vs. Emperor (6) and by the Peshawar Judicial Commissioner's Court in Khurshid vs. Emperor (7 ). There seams to be, therefore, a preponderance of authority in favour of the Madras view. The principle to be deduced from these cases appears to me to be this; just as where there is no express finding of an acquittal in respect of a graver charge, say of murder, and there is a conviction for a lesser charge and such a decision amounts to an acquittal as laid down by their Lordships of the Privy Council in Kishan Singh vs. Emperor (8), similarly although a Magistrate may not expressly discharge a person under a graver charge but he charges him only under a less serious offence such a thing may amount to a discharge even though implied so far as the graver offence is concerned. One serious difficulty created by the Allahabad view, to my mind, is that in cases where an offence is exclusively triable by a court of session and a Magistrate quite arbitrarily charges a person with an offence within his own jurisdiction, then the court of session or the district magistrate who have got revisional powers under the Code cannot correct such mistakes at all and the trial must go on for the minor offence. It is no answer to say to this that the complainant may file a fresh complaint, which will lie to the same Magistrate; or that it is open to the Magistrate if he later on chooses to commit him to the court of session under sac. 347 Cr. P. C. It will be idle to expect that the Magistrate having come to one conclusion earlier Would be inclined to change his mind later and if he does not do so, the error must remain uncorrected to all intents and purposes. Such a view appears to me to be needlessly technical and would serve no judicial purpose. Desai J. was forced by the logic of his own reasoning to hold that even an express order of discharge would not operate as an order of discharge if proceedings continue in the case against a particular accused. With very great respect, I take the liberty of pointing out that such a state of things should not be accepted as correct as it would make the administration of criminal justice extremely difficult and unnecessarily complicated. The word 'discharge' has no here been defined in the Code of Criminal Procedure. It seems to me that if there can be an acquittal under a graver charge, by implication, as held by the Privy Council in Kishan Singh's case cited above, where the actual conviction is under a minor charge, why should the possibility of a discharge by implication, where the accused has been charged by a Magistrate for a minor offence instead of a major offence for which he was brought up for trial, be ruled out as something nor contemplated under the Code at all ? A criminal trial which may be for a single offence or a number of offence is terminated either by an order of acquittal or of discharge where the accused is not convicted; and as obviously there cannot be an acquittal before charge, I think there can be no valid objection to holding that there arises an implied discharge in cases where the Magistrate charges an accused under a minor offence instead of a major one, qua such latter offence. The language of sec. 494 Cr. P. C. also appears to me clearly to indicate that the Code does contemplate a situation where the trial of a person may go on for a particular offence and yet he may stand discharged with respect to another offence or offences. It may happen that such an order of discharge is not questioned at all and then an order of acquittal is passed in favour of the accused. How may be the accused proceeded against in such a case? According to the Madras High Court the order would appear to be still one of discharge and open to revision. But this view in my opinion appears to be open to doubt having regard to the decision of the Privy Council in Kishen Singh's case. The true answer appears to me to be that when a case has ended in a complete acquittal, it must hereafter be dealt with on the footing of an acquittal and the order of discharge must be deemed to have merged itself in the order of acquittal. This should create no difficulty whatever, as in an appeal against acquittal the entire case would be thrown open before the appellate court and that court could, if necessary, order a retrial on a charge for which the accused was not charged at all. The result is that where the Magistrate is invited to frame a charge for a serious offence and he applies his mind thereto and refuses to do so and proceeds to try him on a minor charge as in the present case, I am disposed to hold that his action in not charging the accused for the major offence should be taken to amount to a discharge under the graver section. I may also add that because the Magistrate possesses enabling powers under sec, 347 Cr. P. C. so as to be able to commit the accused later, if he so chooses, to the court of session cannot and need not stand in the way of an aggrieved person proceeding earlier to have the improper order challenged before the superior court and rectified if necessary. With great respect, therefore, I am disposed to prefer the majority view which, to my mind is the more practicable and conducive to substantial justice. I may add, however, that almost all the cases referred to above have arisen where the Sessions Judge proceeded to interfere with the order of the Magistrate and directed an order of committal and the question that arose was whether the Sessions Judge was competent to do so under sec. 437 Cr. P. C. I wish to point out that the case before me is the converse of those cases because the Sessions Judge refused in the instant case to interfere with the order of the Magistrate on the merits The question which then arises is whether this Court has the jurisdiction and authority to interfere with an improper order passed by a Magistrate declining to commit the accused for trial of an offence exclusively triable by a court of session. No decision has been brought to my notice which holds that the High Court in such a case is prevented by anything in the Code of Criminal Procedure from interfering where the action taken by the Magistrate is manifestly improper. Even Desai J. in Nahar Singh vs. The State (1) has observed that a High Court possesses inherent powers, and in exercise of those powers, may quash the proceedings before the Magistrate. Now, the powers of the High Court under sec. 439 read with sec. 423 are extensive and it is clearly provided there that in the case of any proceeding the record of which has been called for by itself or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a court of appeal (subject to certain reservations which are not material here) and quash a proceeding and correct an improper or illegal order passed by a Magistrate irrespective of the consideration whether such an order amounts to an order of discharge or not. I have, therefore, no hesitation in holding that this Court has jurisdiction and authority to order a committal where the Magistrate has erroneously or improperly omitted to do so and clutched jurisdiction where he should not have. It is true that the High Court will not lightly exercise such jurisdiction but it is equally true that it cannot abdicate its functions and must interfere in cases where such interference is called for. I, therefore, over-rule this second preliminary objection also. So far as the second branch of this preliminary objection is concerned, viz. , that this Court should not interfere while the case is pending against one of the accused, I propose to deal with it later. Now, the primary question which I am called upon to consider is whether the approach of the Magistrate or for that matter of the Sessions Judge in this case was at all correct or it was entirely erroneous and improper. I have been taken through the entire judgments of both the courts. I would state at once that the principles which a committing Magistrate must bear in mind in dealing with a case exclusively triable by a court of session are well settled. It is its duty to see whether there is a prima facie case or not, and for this purpose he can certainly weigh evidence but he must remember that he must perform the task of weighing the evidence not to see whether the case would result in conviction but merely to see whether it is fit to be committed. All that he has to see is whether there is a prima facie case requiring trial. He should not, therefore, go into the niceties of the case or delve deeply into the statements of witnesses but he must look at the case in a broad way, and if the evidence placed before him is such that if upon any reasonable view of the evidence a conviction is possible, even though it may not be probable, it is his duty to commit the accused. See Jamsulal vs. The State (9) and Tera Singh vs. The State (l0) Now I do not consider it proper at this stage to deal with the case in detail or from any other angle than which I have indicated above. I have been taken through the statements of the important witnesses and the strong as well as the weak points of the prosecution. I have already given above the prosecution case as related by Mst. Tulcha who is the main prosecution witness in the case. It cannot be said that the story related by her is absurd or fantastic or so improbable that no court would probably believe it. There is also the evidence of the recovery of her old clothes and the new ones which, it is alleged, she was asked to put on with a view to marrying Hiralal. So far as I have been able to understand the case of the prosecution it was a case where it was alleged that Mst. Tulcha had been taken away by deceit to Hiralal who wanted do marry her and the person who practised this deceit on her was Mst. Shanti. It is another matter whether this story is eventually believed or not, but the courts below went completely wrong in dealing with the case in the manner in which they did and came to the conclusion that there was no prima facie case against Mst. Shanti or Lala or Hiralal under sec. 366 I. P. C. It is elementary law that abduction under sec. 366 is a continuing offence. The learned Magistrate appears to me to have weighed the case as though he was the trial Judge and in doing so it is impossible to escape the conclusion that he has usurped jurisdiction which he did not possess. It is true that there are serious points to be explained by the prosecution such as the delay in the filing of the first information report and the alleged unnaturalness of conduct on the part of Mst. Tulcha or some other prosecution witnesses; but all these clearly, to my mind, are matters for the trial court and not for the Magistrate. The learned Sessions Judge in the seventh paragraph of his order rightly observed that the duty of the Magistrate was only to see if it was possible to convict the accused on the evidence before him in which case he should commit the accused and that he should not go deep in the matter and then the learned judge proceeded to quote a long extract from a case decided by our own Court in support of his own observation, Unfortunately, he seems to have gone completely off the rails when he came to apply the principle to the facts of the case before him. Instead of looking at the case from the angle of commitment or from the same angle from which the Magistrate should have looked at it, he has really dealt with it from the angle of conviction, and his comments have, if at all, been far more detailed than even those of the committing Magistrate. I have purposely refrained from dealing minutely with the facts and circumstances of the case because if I did so, I would be committing the same mistake which the courts below have fallen into. Suffice it to say that the prosecution have put forward a prima facie case for trial against all the accused under sec. 366 and it will be for the court of session to pronounce its final verdict on it according to law in due course, and that the courts below have acted with impropriety in throwing out the case in the manner in which they have done. The question in these circumstances is whether this Court should, while the case against Hiralal is pending for trial under certain minor sections in the court of the Magistrate, direct his committal. The argument of learned counsel is that the Court should refrain from passing such an order in the midst of Hiralal's trial and should wait till that case is decided or leave the Magistrate to deal with Hiralal's case under sec. 347 if it should appear necessary for him to do so. I have given this matter my very careful and anxious consideration and have come to the conclusion that there is no force in this contention. The course suggested by learned counsel for the opposite parties does not commend itself to me and the reason for this is simple. If this Court were not to direct a committal at this stage and should postpone it till the case of Hiralal is decided by the Magistrate on certain minor charges, it would lead to a tremendous waste of time and duplication of proceedings. The accused himself would be harassed over two trials and I see no justification for adopting such a course. I am aware that certain observations are to be found in some decisions pointing out the undesirability of directing a commitment while the accused person is being prosecuted on other charge ; but I have no doubt that those do not lay down inflexible rule of law or practice and each case must be decided on its own facts and circumstances. I am definitely of the opinion that it would be in the interests of every-one concerned that the opposite parties are tried for an offence under sec. 366 I. P. C. by the court of session at this very stage rather than that this trial be postponed, even so far as Hiralal is concerned, after his trial, on the other charges triable by the Magistrate, is finished. For the reasons explained above, I set aside the orders of the Extra First Class Magistrate, Barmer and the Sessions Judge, Balotra. and hereby direct that the former will commit the opposite parties for trial to the court of Session under sec. 366 I. P. C. and all other offences which may be disclosed on the evidence laid before him against all or any one of them in accordance with law. . ;