AMIR HASAN Vs. REX THRUOGH RAM SARUP

JUDGEMENT

(1.) This application in revision is directed against an order of the learned Sessions Judge of Bijnor, dated 2 July, 1947, by which he has directed the applicants to be committed to the Court of Session after setting aside an implied order of discharge by a learned Magistrate of the first class of that district. The applicants were prosecuted on the report of one Ram Sarup which was sent in writing to the police Station, Chandpur on 6 December 1946. The complainant's report was to the effect that his house was attacked by a number of persons who gave him a severe beating, took away his ornaments, clothes, utensils and damaged his other property. The complainant further stated that he knew two of the accused and that he did not know the others but that he could identify them if they were brought before him. He pray, ed that the accused be prosecuted for an offence under Section 395, Indian Penal Code.

(2.) After necessary investigation, the investigating officer submitted a charge sheet against six persons in respect of an offence under Section 395, Indian Penal Code. These accused persons were examined by the learned Magistrate on 28 April 1947, and 29 April 1947 was fixed by him, after hearing of arguments, for framing charges against them. It appears that the learned Magistrate on 29 April 1947, heard the arguments of the Public Prosecutor and learned Counsel for the defence and proceeded to frame charges against the accused. He framed charges against the accused under Secs.147, 452 and 323 read with Section 149, Penal Code, but did not frame any charge under Section 395, Indian Penal Code. He did not record any reasons for not framing any charge against the accused under that section.

(3.) It may be taken as good law that omission to frame a charge is tantamount to an implied order of discharge. Therefore, the omission on the part of the learned Magistrate to frame a charge under Section 395, Indian Penal Code, was tantamount to a discharge of the accused under that section. Against that implied order of discharge, the complainant filed an application in revision, under Section 437, Criminal P.C., in the Court of the Sessions Judge, Bijnor. The learned Sessions Judge set aside the implied order of discharge and directed that the applicants should be committed to the Court of Session to take their trial under Section 395, Indian Penal Code. It is against that order of the learned Sessions Judge that the applicants have come up to this Court in revision.