JUDGMENT B. P. Jha, J 1. The petitioners have moved this Court for setting aside the order of the Additional Sessions Judge dated the 10th of June, 1970. By this order the Additional Sessions Judge set aside the order of the Magistrate dated the 1st of August, 1969. 2. In the present case, the cognizance was taken on the basis of the police report in respect of the offence under sections 143, 379 and 435 of the Indian Penal Code. The Magistrate passed an order under section 251A(2) of the Code of Criminal Procedure (hereinafter referred to as 'the Code'). By this order the Magistrate discharged six persons, who are petitioner Nos. 4 to 9 in respect of all the offences. The Magistrate has the power to discharge the accused persons provided he considers the charge against the accused to be groundless. While passing the order, the Magistrate must consider all documents referred to in section 173 of the Code. In other words, Magistrate has to consider the statements of all witnesses, recorded under section 161 of the Code, on which the prosecution proposes to rely. It is dear from police report (chargesheet) that the prosecution proposes to rely on the statements of following witnesses, namely-(i) Mossamat Sawari, (ii) Badshah Bind, (iii) Adalat Manjhi, (iv) Fuleshwari Devi and (v) A.S.I., N.B. Singh. Out of these witnesses the Magistrate has considered the statements of Badshah Bind and Adalat Manjhi. I asked the counsel for the petitioners to indicate the consideration of the statements of the witnesses, namely, Fuleshwari Devi and Mossamat Sawaria in the order of the Magistrate. The counsel failed to point out the consideration of the statements of these witnesses by the Magistrate while passing the order of discharge. A Magistrate can discharge the accused under section 251-A(2) of the Code after considering all the statements of witnesses on which the prosecution proposes to rely. If he does not consider the statements of all the witnesses on which the prosecution proposes to rely, he has no jurisdiction to discharge the accused. In this view of the matter, the order of discharge passed by the Magistrate is illegal. 3. The learned Additional Sessions Judge set aside the order of the Magistrate on the ground that the Magistrate was not justified at this stage in discharging the accused relying on statements of persons not cited by the prosecution as witnesses. In this view of the matter, the order of discharge passed by the Magistrate is illegal. 3. The learned Additional Sessions Judge set aside the order of the Magistrate on the ground that the Magistrate was not justified at this stage in discharging the accused relying on statements of persons not cited by the prosecution as witnesses. In my opinion, the learned Additional Sessions Judge was right in holding so. In my opinion, the Magistrate has no jurisdiction to discharge an accused under section 251-A (2) of the Code relying on the statement of witnesses on which the prosecution does not propose to rely. 4. In my opinion, while passing the order of discharge under section 251-A (2) of the Code, the Magistrate is required to consider all the documents referred to in section 173 of the Code. Before passing the order, he is also required to hear both parties, namely, prosecution and accused persons. If the Magistrate passes the order of discharge without considering all the documents referred to in section 173 of the Code including the statements of all witnesses on which the prosecution proposes to rely, the order of discharge is illegal. In the present case, the Magistrate did not consider the statements of two witnesses (as stated above) on which the prosecution proposed to rely. In my opinion, the order of discharge is illegal. 5. In course of the order the Additional Sessions Judge observed that the Magistrate should have framed charges in respect of the offences under sections 143, 435 and 379 of the Indian Penal Code. I do hereby direct that the Magistrate will frame charges against the accused persons on the basis of the materials available on the record. He is not bound to frame charges in accordance with the direction of the Additional Sessions Judge. 6. The counsel for the petitioners contends that if an accused is discharged under section 251-A (2) of the Code, a petition under section 436 of the Code before the Sessions Judge is not maintainable. In my opinion, if an accused is discharged under section 251-A (2) of the Code, an application under section 436 of the Code before the Sessions Judge is maintainable, as section 436 provides that the Sessions Judge can revise an order of discharge passed in a case against an accused. In my opinion, if an accused is discharged under section 251-A (2) of the Code, an application under section 436 of the Code before the Sessions Judge is maintainable, as section 436 provides that the Sessions Judge can revise an order of discharge passed in a case against an accused. In the present case, the accused persons were discharged under section 251-A (2) of the Code, and, therefore, a petition under section 436 of the Code was maintainable before the Sessions Judge. The counsel submits that section 436 of the Code is applicable to a case where an accused is discharged in a complaint case and not in a police case. In my opinion, section 436 of the Code does not make any such distinction. It applies to an order of discharge passed both in a complaint case as well as in a police case. 7. In the result, the revision petition is dismissed. Application dismissed.