( 1 ) THE State has filed this petition against the, order of discharge, dated 30-8-1and74, passed by the Judicial Magistrate, First Class, Muddebihal, in crl. Case No. 590 of 1974, discharging the respondents of the offence under s. 302 read with S. 34 I. P. C. ( 2 ) THE prosecution case is that at about 8-00 p. m. on 24-4-1974 near the village gate of Devoor, the respondents pelted stones against the deceased sayabanna and caused injuries to him; and that Sayabanna developed tetanus on 2-5-1974 and further that he expired on 3-5-1974 in the T. D. B. Dispensary at Muddebehal. ( 3 ) THE police investigated into the 'case on receipt of. the first information report on 3-5-1974 and filed charge-sheet. On the filing of the chargesheet, the Magistrate took cognizance of the offences and thereafter enlarged the respondents on bail as requested by them. By the order in question, the Magistrate has discharged the respondents of the offence under S. 302 read with S. 34 IPC. , on the reasoning that in view of the words it appears' occurring in Sec. 209 Crlpc, a Magistrate has power to find out whether in fact an offence of murder appears to have been made out or not, and in case he finds in the negative, he has power to discharge the accused. ( 4 ) IT is for a Magistrate tc decide, after scrutinising the material produced before him, in regard to what offences he should take cognizance. In this case, the Magistrate took cognizance, also of-the offence under S. 302 read with S. 34 I. P. C. S. 209 Crl. P. C. lays down that when in a case instituted on a police report or otherwise, the accused appears or is brought before the Magisrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall commit the case to the Court of session. After the Magistrate took cognizance of the offence under S. 302 read with S. 34 I. P. C. , there was no scope for interpreting the words it appears' occurring in S. 209 Crl. P. C. Moreover, S. 209 does not at all empower a magistral to pass an order of discharge. That power is vested in the Sessions Judge under S. 227 Crl. P. C. Moreover, S. 209 does not at all empower a magistral to pass an order of discharge. That power is vested in the Sessions Judge under S. 227 Crl. P. C. These reasons show that the order in question cannot be sustained. ( 5 ) FOR the foregoing reasons, this petition is allowed and the order dated 30-8-1974, passed by the Magistrate, is set aside. --- *** --- .