JUDGMENT Dayal, J. - Nisar Ahmad filed a complaint u/s 325 I.P.C. against Abdul Wahid and Abdul Hakim. The complaint mentioned that the accused had committed offences Under Sections 307 and 325 I.P.C. The Magistrate framed a charge against the two accused with respect to an offence u/s 323 I.P.C. for the alleged beating of Nisar Ahmad by these accused with lathis, kicks and fists. Nisar Ahmad filed a revision before the Sessions Judge of Azamgarh praying that the Court should order the committal of the two accused to the Court of Sessions for the offence u/s 307 I.P.C. The learned Sessions Judge agreed, with the applicant's contention and ordered u/s 437 Code of Criminal Procedure that the case be committed to the Court of sessions for trial of the offence u/s 307, read with Section 34 I.P.C. 2. Abdul Wahid then filed this revision in this Court, praying that the order of the Sessions Judge was bad and should be set aside. The revision came up for hearing before a single Judge of this Court who, after hearing the parties referred the case to a larger Bench in view of his difference of opinion with the views expressed by another single Judge of this Court in the case of Rex v. Amir Hasan 1948 A.L.J. 562 both with respect to the question whether it was necessary for a Magistrate to record reasons for impliedly discharging an accused when he does not commit the accused to the Court of sessions but decides to try him for other offences himself, and the question as to what principles should guide a Sessions Judge in the exercise of his powers u/s 437 of the Code of Criminal Procedure. 3. We have heard the learned Counsel for the parties, and are of opinion that it is not necessary for a Magistrate who decided to try a case himself and does not commit the accused to the Court of sessions to record reasons for his not charging the accused with the offence exclusively triable by the Court of sessions. 3. We have heard the learned Counsel for the parties, and are of opinion that it is not necessary for a Magistrate who decided to try a case himself and does not commit the accused to the Court of sessions to record reasons for his not charging the accused with the offence exclusively triable by the Court of sessions. Section 209, Code of Criminal Procedure, is: (1) when the evidence referred to in Section 208, Sub-sections 1 and 3, has been taken, and he has (if necessary) examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him, such Magistrate shall, if he finds that there are not sufficient grounds for committing the accused person for trial, record his reasons and discharge him, unless it appears to the Magistrate that such person should be tried before himself or some other Magistrate, in which case he shall proceed accordingly. (2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless. 4. It clearly provides that if the Magistrate fids that there are not sufficient grounds for committing the accused person for trial, he shall record his reasons and discharge him. It does not provide that he should record his reasons for not charging the accused with respect to the offence triable by the court of sessions when he decides that the accused should be tried before himself or some other Magistrate. 5. We are further of opinion that when the Magistrate decides that the accused be tried by him or any other Magistrate, the accused is not discharged, and therefore no question of the recording of reasons arises. 6. In Rex v. Amir Hasan 1948 A.L.J. 562 Sapru J. observed: 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 u/s 395, I.P.C., was tantamount to a discharge of the accused under that section. In Rex v. Amir Hasan 1948 A.L.J. 562 Sapru J. observed: 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 u/s 395, I.P.C., was tantamount to a discharge of the accused under that section. It was in this view of the matter that Sapru J. remarked later at page 563, when interpreting the expression "improperly discharged." By omitting to record any reasons for framing a charge against the accused u/s 395 and this was the charge for which the accused were being prosecuted, the learned Magistrate committed a serious irregularity. 7. We are of opinion that the mere non framing of a charge with respect to a certain offence alleged to have been committed by an accused person does not amount to an order discharging the accused, and that an order of discharge is really an order by which a court puts an end to the proceedings against the accused with respect to any particular offence, which means with respect to such acts or things which are punishable and for which the punishment of the accused is sought in the case. Such an order of discharge can result in the termination of the entire proceedings against the accused when the court does not proceed against the accused with respect to any offence and can also arise when the court decides to proceed against the accused with respect to certain offences and not with respect to others. But before an order can really amount to an order of discharge, it is essential that with respect to certain offences the entire proceedings against the accused do come to an end. This would be clear from the various provisions in the Code of Criminal Procedure which provided for the discharge of an accused. 8. Section 253 provides for the discharge of an accused who is being tried in a warrant case. This section is: (1) if upon taking all the evidence referred to in Section 252, and making such examination (if any) of the accused as the Magistrate thinks necessary, he finds that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. This section is: (1) if upon taking all the evidence referred to in Section 252, and making such examination (if any) of the accused as the Magistrate thinks necessary, he finds that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. (2) Nothing in this section shall be "deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate he considers the charge to be groundless." 9. Sub-section (1) of the section provides for a discharge when there is no such case against the accused which, if unrebutted, would warrant his conviction, and Sub-section (2) authorises the Magistrate to discharge the accused even before the Magistrate has recorded the entire evidence. In the case, if the Magistrate is of opinion that the charge is groundless. 10. This section contemplates discharge when there is no case against the accused, and in such a contingency it must follow that the entire proceedings against the accused are dropped. If proceedings can continue against the accused with respect to certain offence which, in the opinion of the Magistrate, might be established against him on the basis of the evidence led in the case, Section 252, Code of Criminal Procedure, authorises the Magistrate to frame a charge with respect to those offences. It will be noticed that Section 254 in no way refers to the mention of the offences in the complaint or in the charge sheet. In fact, any reference to the offences in the complaint or charge-sheet is futile. The Court is not to be guided by the sections expressed in these documents. The court will have to determine what offences are likely to be made out on the basis of the allegations made by the prosecution witnesses and which might be taken to be proved or capable of proof. 11. Section 259, Code of criminal procedure, refers to the discharge of an accused when the complainant is absent at the hearing of the case. Here again it must mean that the entire proceedings against the accused would be dropped on account of the default of the complainant in those circumstances. 12. 11. Section 259, Code of criminal procedure, refers to the discharge of an accused when the complainant is absent at the hearing of the case. Here again it must mean that the entire proceedings against the accused would be dropped on account of the default of the complainant in those circumstances. 12. Section 333, Code of Criminal Procedure, provides for the discharge of an accused who is an trial before the High Court when the Advocate-General intimates the desire of His Majesty that the case be not proceeded with against the Defendant. It says in express terms that on such intimation all proceedings on such charge against the Defendant shall be stayed, and he shall be discharged of and from the same. This again makes it clear that when the accused is discharged all proceedings terminate against him. 13. Section 484, Code of Criminal Procedure, provides that the court may, in its discretion, discharge the offender who has committed contempt of the court or remit the punishment on his submission to the order or requisition of such court, or on apology being made to its satisfaction. Here again it must be a complete discharge and termination of the proceedings which the court had drawn up against the offender. 14. Lastly, Section 494 of the Code of Criminal Procedure provides for the discharge of an accused when any public prosecutor withdraws from the prosecution of any person. This section provided a complete discharge and the termination of the entire proceedings against the accused, till this section was amended in 1923. The amended section provides that a public prosecutor may, with the consent of the court, withdraw from the prosecution of any person either generally or in respect of one or more of the offences for which he is tried, and upon such withdrawal, if it is made before the charge has been framed, the accused shall be discharged in respect of such offence or offences. Even now it means a complete termination of the proceedings with respect to the particular offence or offences which have been withdrawn by the public prosecutor. 15. The provisions of Section 433, Code of Criminal procedure, also appear to contemplate a discharge of an accused either with respect to the entire proceedings against him or with respect to any particular offence out of the several offences which were alleged against him. 15. The provisions of Section 433, Code of Criminal procedure, also appear to contemplate a discharge of an accused either with respect to the entire proceedings against him or with respect to any particular offence out of the several offences which were alleged against him. This section provides that the Sessions Judge may order the discharged person to be committed for trial upon the matter of which he has been, in the opinion of the Sessions Judge, improperly discharged. The matter must refer to the offence or the acts for which he was alleged to be punishable. There may be several offences for which an accused may be tried and be punishable in a single case, and therefore, if an accused is discharged with respect to some offences and not with respect to the others, that discharge can come within the purview of Section 437, Code of Criminal Procedure. It would, however, be a different question at what stage that discharge order comes into existence. 16. It would be clear from the above that the order of discharge comes into existence when certain proceedings with respect to certain alleged offences come to an end against the accused, and in the nature of things, therefore, should come into existence when the case is finally disposed off. The final disposal can be either by the accused being discharged of the various offences alleged against him, no charge being framed against him at all, or it can come into existence when the accused is convicted or acquitted of the offences which were charged against him and is discharged of the other offences which were alleged against him. This discharge Order in the latter case may be in express terms or may be implied by the fact that the court did not pass any order with respect to that offence. The mere non framing of a charge cannot, therefore, amount to an order of discharge so long as the accused is on trial with respect to the offences which are charged against him. 17. Section 227, Code of Criminal Procedure, authorises any Magistrate to alter or add to any charge at any time before judgment is pronounced. It follows that the Magistrate is free to frame a charge which he did not consider necessary to frame at an earlier stage of the proceedings. 17. Section 227, Code of Criminal Procedure, authorises any Magistrate to alter or add to any charge at any time before judgment is pronounced. It follows that the Magistrate is free to frame a charge which he did not consider necessary to frame at an earlier stage of the proceedings. So long as the Magistrate retains the option of framing a charge against the accused with respect to the allegations made against him, it seems impossible to say that the Magistrate had, by his non framing of the charge, discharged that accused of the offence which might have been made out against him on the basis of those allegations. 18. Section 347, Code of Criminal Procedure authorises a Magistrate conducting any inquiry or trial to commit for trial, if it appears to him at any stage of the proceedings before signing judgment that the case is one which ought to be tried by the court of sessions or the High Court. It would follow that, if by the time the Magistrate signs his judgment, he is of opinion that the accused has committed an offence which ought to be tried by the court of sessions, he will be at liberty to frame a charge for that offence, if necessary, and to order commitment of the accused. 19. When the Magistrate is authorised to alter or add to the charge during the proceedings before him after the framing of the charge with respect to certain offences, he must not be deemed to have lost seizin of the case with respect to those offences which he had not charged earlier and which offences might in some cases be such as could be exclusively triable by the court of sessions. If it be held that a Magistrate's not framing a charge amounted to the discharge of the accused with respect to the offence not charged, the Magistrate himself could not have in a way reviewed or revised his previous order of implied discharge and charged the accused for the offence of which he is deemed to have been discharged. 20. The same conclusion can be arrived at by taking into consideration that the Code of Criminal Procedure has expressly provided for the charging of an accused in certain circumstances or for the discharge of the accused by courts. 20. The same conclusion can be arrived at by taking into consideration that the Code of Criminal Procedure has expressly provided for the charging of an accused in certain circumstances or for the discharge of the accused by courts. It is not provided in express terms that an accused is not to be charged in such and such circumstances. Discharge is not synonymous with 'non charge' The definition of the words 'proved', 'disproved' and not proved' in the Indian Evidence Act provides support to this view that the word discharge will not cover a case of non charge or emission to frame a charge. 21. In this view of the matter the order of the Magistrate in not framing a charge u/s 307 I.P.C.against the accused while he proceeded to try the accused on a charge u/s 323 I.P.C. did not amount to an order of discharge. It cannot certainly be an improper order of discharge. It follows that the learned Sessions. Judge had no juridiction u/s 437. Code of Criminal Procedure to order committal of the accused u/s 307 I.P.C., He could have passed such an order only when the case was a case exclusively triable by a Sessions Judge and when the accused had been improperly discharged 22. As already stated, there is not much case law on this point. The few cases which have been brought to our attention are really capes where the accused was not tried for offences which were triable by the court of sessions, but was tried for other, offences and was either acquitted or convicted of the offences he was charged with. The views of High Courts differ. They all agree that the accused could be retried for the graver offences which the Magistrate could not have tried. They really differ as to which court should order retrial. The Calcutta High Court held in Baijanath Pandey v. Gauri Kanta Mandal, ILR 20 Cal. 633 that in such a case the Sessions Judge could not order commitment of the accused for the offence of which he was impliedly discharged and that the High Court was the, only Court which could order the commitment The Madras High Court held to the contrary in Krishna Reddi v. Subbamma(sic), ILR 24 Mad. 136. 633 that in such a case the Sessions Judge could not order commitment of the accused for the offence of which he was impliedly discharged and that the High Court was the, only Court which could order the commitment The Madras High Court held to the contrary in Krishna Reddi v. Subbamma(sic), ILR 24 Mad. 136. It held that the order amounted to an order of discharge with respect to the graver offence and that, therefore, the Sessions Judge could act u/s 437 Code of Criminal Procedure Similar are the oases reported in Shambhooram v. Emperor, AIR 1935 Sind. 221. Khurshid v. Emperor 45 Cr. L.J. 167, and Emperor v. Sukhlal, ILR 56 All 529 which followed the Madras case. This disputed point, however, does not arise in the present case. Here the main case is still pending and the Magistrate is still free to alter or add any charge and to decide whether the accused ought to be committed to the court of sessions or not. 23. The Madras view, however, was followed in Sheo Nafaiit Singh v. Radha Mohan ILR 42 All. 128. In this case the accused was charged with an offence u/s 323 I.P.C. and not u/s 367 I.P.C. The complainant went up in revision to the District Magistrate, who ordered that further inquiry be made. The accused filed a revision in the High Court. Of the contentions before this Court, the second contention was that the District Magistrate could not have passed the order for further inquiry under the provisions of Section 437 Code of Criminal Procedure Ryves J. followed the Madras case reported in ILR 24 Mad 136, and held that the District Magistrate had jurisdiction to order further inquiry. The facts of the Madras case were different, but it was observed at page 146: Chapter XVIII relates to enquiries into cases triable by the court of sessions or High Court.The primary object of Section 209 is to make provision for the procedure in such cases. If, in the opinion of the Magistrate, there is no evidence to warrant a charge for an offence exclusively triable by a court of sessions, he may 'discharge' the accused in respect of the alleged offence and, having done so, " may proceed as regards the minor offence or offences under Chapter XXI or other appropriate Chapter. If, in the opinion of the Magistrate, there is no evidence to warrant a charge for an offence exclusively triable by a court of sessions, he may 'discharge' the accused in respect of the alleged offence and, having done so, " may proceed as regards the minor offence or offences under Chapter XXI or other appropriate Chapter. In fact, a Magistrate cannot proceed to act under the latter part of Sub-section (1) of Section 209 until he has 'discharged' the accused under the former part of the Sub-section. This is the course which the Magistrate adopted in the present case. 24. With respect we differ from this analysis of Section 209 Code of Criminal Procedure Section 209 deals with all inquiries with respect to cases which can be committed to the court of sessions or to the High Court and not only with respect to inquiries in Such cases which are exclusively triable by the court of Sessions, It is, therefore, not right to treat the first portion of Sub-section (1) of Section 209, Code of Criminal Procedure to mean that in case there is no evidence to warrant a charge for an offence exclusively triable by a court of sessions, the magistrate may discharge the accused in respect of the major offence and may proceed as regards the minor offence. The section does not require that before the Magistrate proceeds to try the accused he must record an order of discharge. In fact, the section really means the contrary, and provides that the reasons for discharge should be recorded unless the Magistrate decides to try the accused before himself. We are unable to interpret Section 209(1) to create such a bar as is indicated in the above quoted observations in the Madras case, that is, a restriction to the effect that a Magistrate cannot proceed to act under the latter part of Sub-section (1) of Section 209, until he has discharged the accused under the former part of the Sub-section. Apart from this interpretation of Section 209. We have already expressed the opinion that an order of discharge cannot come into existence till the entire proceedings is the case come to an end, it being open to a Magistrate to alter or add to the charge he frames at an earlier stage of the proceedings. Apart from this interpretation of Section 209. We have already expressed the opinion that an order of discharge cannot come into existence till the entire proceedings is the case come to an end, it being open to a Magistrate to alter or add to the charge he frames at an earlier stage of the proceedings. We are, therefore, of opinion that the case of Sheo Narain Singh reported in ILR All 128, was wrongly decided. 25. In AIR 1934 164 (Lahore) charges were framed Under Sections 148 and 304, part 2, I.P.C. The complainant moved the Sessions Judge, who directed the commitment of the accused u/s 302/149, I.P.C. This order of committal was held to be correct by the High Court. Reference was made in the judgment to the case of Krishan Singh v. Emperor AIR 50 All. 722. In that case the Privy Council held that when an accused charged u/s 302, I.P.C. was convicted u/s 304, I.P.C., the order amounted to an acquittal with respect to the major charge. On the analogy of this decision of the Privy Council, it can be held that when a case ends the accused would be deemed to be acquitted or discharged of the offences with which he was not charged at the trial and which were alleged to have been committed by him. If the offence is one which is triable by the Court which passes the final order terminating the proceedings, the accused must be deemed to have been acquitted of the offence, and if it is not triable by the Court, to have been discharged of such offence. This view about implied acquittal or discharge does not justify the conclusion that even before the conclusion of the trial the accused would be deemed to he discharged of the offence which has not been charged against him while a different offence has been charged against him and he is on trial for that offence. 26. The view expressed by us was taken in two Avadh oases, reported in AIR 1926 Oud 194, Bilodar v. Emperor, AIR 1926 Oudh 194 and in Nasimullah v. Emperor, AIR 1941 Oudh 409. In the former case the accused were charged Under Sections 147 and 325, I.P.C. instead of Sections 147 and 304, I.P.C. mentioned in the police chalan. The Sessions Judge ordered the committal of the accused for trial u/s 304. In the former case the accused were charged Under Sections 147 and 325, I.P.C. instead of Sections 147 and 304, I.P.C. mentioned in the police chalan. The Sessions Judge ordered the committal of the accused for trial u/s 304. This order was set aside by Ashworth J., who observed at page 195: 27. Whatever may be said as to the first condition having obtained, it could not be contended that any accused persons in this case had been improperly discharged by the inferior court, in as much as the only person discharged was Buddhi, and the Sessions Judge had held that he was rightly discharged. In reply to this argument, counsel for the Crown has maintained that a person may be said to have been improperly discharged within the meaning of Section 437 when he has been discharged in respect of an offence Under another section. Section 253, Code of Criminal Procedure suggests that the word 'discharge' means absolute discharge and not such a partial discharge as is suggested. On the other hand, the last portion of Section 437, '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 or District Magistrate, improperly discharged, suggests that action can be taken u/s 437 where no charge has been framed against an accused person in respect of one matter, though it has been framed against him in respect of other matters. In this case however, the matter in respect of which the charge was framed by the Magistrate Under Sections 147 and 325 of the Indian Penal Code was the assault upon the deceased and the causing of injury to him. The applicants cannot, therefore, be said to have been discharged within the meaning of Section 437, and for this reason it appears to me that the Sessions Judge was not authorised to order commitment under that section.' 28. In view of the above, we are of opinion that the applicant was not discharged of the offence u/s 307, I.P.C. when he was charged u/s 323, I.P.C. by the Magistrate. 29. The Sessions Judge, therefore, had no jurisdiction to take action u/s 437, Code of Criminal Procedure, and order the committal of the applicant. 30. In view of the above, we are of opinion that the applicant was not discharged of the offence u/s 307, I.P.C. when he was charged u/s 323, I.P.C. by the Magistrate. 29. The Sessions Judge, therefore, had no jurisdiction to take action u/s 437, Code of Criminal Procedure, and order the committal of the applicant. 30. The learned Counsel for the complainant has argued that, in this views of the matter, the order of the Session Judge might be treated as a reference to this Court and that this Court, in the circumstances of the case, should either order the committal of the accused or should not disturb the order passed by the Sessions Judge. We are of opinion that an order passed in a criminal case by a court without jurisdiction cannot be condoned. Further, we are of opinion that this is not a fit case in which an order of committal should be passed. An order of committal or an order directing a court to frame a certain charge which it has not considered necessary to frame should be passed in very exceptional circumstances. Ordinarily the trial must proceed as the Magistrate considers proper. A party is not without relief in case the Magistrate has acted wrongly. Whatever the result of the case, be it the acquittal of the accused or be it his conviction, the ca3e can be taken to the appellate court which can, u/s 423 Code of Criminal Procedure order committal of the accused if it be of opinion that the accused should have been tried for the graver offence with which the Magistrate wrongly faild to charge the accused. when such a remedy is available in case of an appeal against the order of the Magistrate, the revisional powers of this Court u/s 439, Code of Criminal Procedure read with Section 423. Code of Criminal Procedure should be exercised in very exceptional cases. 31. We therefore, allow this application for revision, set aside the order of the Sessions Judge ordering the committal of Abdul Wahid and Abdul Hakim for an offence u/s 307 I.P.C. and direct that the case be proceeded with by the Magistrate according to law.