ORDER Bennet, J.
1. This is an application in criminal revision on behalf of one Pt. Alopi Din, secretary of the District Board of Banda, against an order of the District Magistrate, dated 5th. September 1934. committing him for trial to the Court of Session along with three other persons Pt. Salig Ram, engineer of the District Board, Thakur Babu Singh, sub-overseer, and Suraj Prasad, a contractor, under Sections 120-B, 420, 477(a), Penal Code, in the case of all the accused, and Section 218, Penal Code, in the case of Alopi Din and Section 218/109, Penal Code, in the case of the three other accused. There was a complaint by B. Damodar Prasad, junior vice chairman of the District Board, against these four accused persons and the police made an investigation into the complaint and the case was prosecuted. When the prosecution began the prosecuting inspector addressed the Court and the Court passed the following order:
The Prosecuting Inspector in opening the case said that he wanted to prosecute all the accused under Sections 420, 468 and 120-B, I.P.C. and that there was no case under Section 218, I.P.C. The procedure will therefore be that of a warrant ease.
2. One of the points in revision is that this order shows that there was a withdrawal by the prosecuting inspector from the offence of Section 218, Penal Code. Under Section 494, Criminal P.C. a public prosecutor may:
withdraw from the prosecution of any person either generally Or in respect of any one or more of the offences for which he is tried.
3. The claim is that there was a withdrawal. The word "offence" is defined in Section 4(o), Criminal P.C. as meaning Any net or omission made punishable by any law for the time being in force.
4. Therefore a withdrawn by a public prosecutor is withdrawal from the prosecution of any person for any act or omission made punishable by any law; that is, the Public Prosecutor states that he does not want to prosecute for certain alleged acts or omissions. In the present case there was no such statement by the prosecuting inspector. He merely stated that there was DO case under Section 218, Penal Code. He did not state that there were any acts or omissions for which he did not sesire prosecution of the accused. He only gave his opinion that the evidence produced for the prosecution would not show a case under Section 218, Penal Code, I consider therefore that there was no withdrawal by the Public Prosecutor in this case. It is further clear that a withdrawal at the beginning of a case must come under Section 494(a), Criminal P.C. and would only amount to a discharge of the accused and it would lot come under Sub-section (b) a withdrawal after a charge has been framed, which produces the result of an acquittal.
5. The Magistrate proceeded to try the case as a warrant case and after the statements of accused he discharged Alopi Din, the secretary, and framed charges against the other three accused. The District Magistrate has taken up the case against Alopi Din under the provisions of Section 437, Criminal P.C. and he has considered the evidence in an order extending to 12 typed pages and he has come to the conclusion that Alopi Din and the other accused, should be tried by the Court of Session and he has committed them for trial to the Court of Session and has framed charges. Learned Counsel addressed me at considerable length on the merits of the case and he argued that this Court in revision could hear the case on its merits and decide whether there was sufficient material for these persons to stand their trial at the Court of Session or whether there was not. A great deal of evidence has been given in this case for the prosecution extending over 1591 pages of the record. This is a case of committal under Section 437, Criminal P.C. to the Court of Session. I do not think it necessary to decide whether it is open to this Court in such a case to go into the evidence for the prosecution and to come to a decision in the manner suggested. But I consider that it would be very unwise to do so in the present case because that would amount to taking the place of the inquiring Magistrate. If I came to a decision contrary to the accused on the merits of the case and expressed such a decision in this order it would prejudice the fair trial of the accused at the Court of Session.
6. For these reasons I consider that in the present case it is undesirable that I should express any opinion on the merits of the prosecution evidence against Alopi Din. Learned Counsel argued that it was not competent to the District Magistrate to set aside the order of discharge passed by the trial Court without upsetting its estimate of the oral and documentary evidence adduced in the case and holding that the same was perverse. This is ground No. 5 of the application. To support this proposition learned Counsel referred to a ruling of mine in Nazir Ahmad v. Emperor 1934 All. 944. That was a ruling under Section 436, Criminal P.C. I consider however that Section 437, Criminal P.C. differs in important particulars from Section 436, Criminal P.C. In my opinion Section 437, Criminal P.C. is mainly intended to meet the case where a Magistrate wrongly considers that he has jurisdiction to try a certain case and proceeds to try that case; and where the Sessions judge or the District Magistrate considers that the facts alleged show a case triable exclusively by the Court of Session and that the inferior Court has improperly discharged an accused person. In the present case the District Magistrate considers that Section 218, Penal Code, an offence exclusively triable by the Court of Session, is an offence shown by the facts alleged and therefore the District Magistrate considers that the inferior Court wrongly tried the case. The function of a Magistrate trying a case is different from the function of a Magistrate inquiring into a case exclusively triable by the Court of exclusively triable by the Court on Session. It is not for a Magistrate making an inquiry into a case triable exclusively by the Court of Session to weigh the evidence or to give the accused the benefit of the doubt. As this Court has frequently laid down the duty of the Magistrate in such circumstances is to see whether there is sufficient evidence to commit to the Court of Session, and if he finds that there is sufficient evidence then he should commit the case to the Court of Session. Learned Counsel relied on certain rulings which in my opinion do not apply to the present case. One ruling Rithanjan Rai v. Emperor 1925 Pat 599, does lay down that under Section 437, Criminal P.C. the Sessions Judge has to consider whether it was open to the Magistrate to come to the conclusion to which he did come on the materials before him. That a different view could be taken on the evidence would not justify the Sessions Judge in ordering commitment. He must come to the conclusion that the finding of the Magistrate is not only wrong but perverse. I do not consider that that ruling is one with which I can agree and I must respectfully differ. Learned Counsel then argued a ground which is not contained in his memorandum of revision which was that for Section 437, Criminal P.C. to apply there must be an order of discharge on a charge of a section exclusively triable by the Court of Session. For this proposition he referred first of all to Queen-Empress v. Kanchan Singh (1875) 1 All. 413, and to Nalluri Chenchih v. Emperor 1919 Mad. 45. In both those cases the Courts decided that the offence with which the District Magistrate or Sessions Judge desired to charge the accused under the section which corresponded to Section 437, Criminal P.C. was not an offence exclusively triable by the Court of Session.
7. The language of the section requires that the offence should be exclusively triable by the Court of Session, Therefore the Courts held that the order was not justified under the section in question. That however will not apply to the present case because Section 218 is exclusively triable by the Court of Session. Learned Counsel then referred to Abdul Hakim v. Bazruk Ali 1918 Cal. 943. One of the two Judges did enunciate the proposition laid down by counsel, but the other Judge differed. I do not think therefore that a ruling in which two Judges differ on this point can be held to support the point. No authority therefore has been shown to support the proposition. It appears to me that the proposition as enunciated by counsel is not in accordance with the language of the section. The language of the section requires that the case should be triable exclusively by the Court of Session, but it does not go on to state that an accused person has been improperly discharged on such a charge. On the contrary the section merely says that it requires that an accused person has been improperly discharged by the inferior Court. These words are general and cover a discharge on any kind of charge and not merely a discharge on a charge of an offence exclusively triable by the Court of Session. Argument was also made on ground No. 7 which states that on the finding that the applicant must have joined the conspiracy at least about the time that the civil suit was brought there could be no charge against the applicant under Section 218, Penal Code.
8. This argument reopens the question of the merits of the case into which I have said that I do not intend to go. No ground has been shown for interference with the order of the District Magistrate. It appears, to me that-both the prosecution and the defence are entitled to ask that there should be a fair trial, the District Magistrate 'has committed this case to the Court of Session for a fair trial. The present applicant in revision appears to consider that by coming to this Court affair trial can be prevented and that this Court should consider the merits of the case in revision and give orders that the trial should not take place. I do not consider that such a procedure by this Court would be in accordance with justice. The prosecution is entitled to have its case fairly heard under Section 218, Penal Code, which is a section exclusively triable by the Court of Session. Accordingly it appears to me that the correct order is to dismiss this application and allow the Court of Session to try the case. I accordingly refuse this application.