JUDGMENT M.M. Gupta, J. - This revision has been filed by Chunni Lal, Bachu Lal and Sharma alias Siya Ram. They were convicted u/s 323 read with Section 34 Indian Penal Code by Munsif Magistrate Chakia, Varanasi and sentenced them to pay a fine of Rs. 200/- each and in default of payment of fine they were sentenced to undergo simple imprisonment for one month. The applicants went up in appeal before the learned Sessions Judge, Varanasi. The appeal was heard by v. Addl. Sessions Judge, Varanasi. He was of the opinion that the case was one u/s 304 Indian Penal Code . He, therefore, set-aside the conviction of the applicants and remanded the case with the direction to the Magistrate to commit the accused to the court of Session for trial. 2. According to the prosecution case the applicants and deceased Kapildeo were residing in village Arari within the police circle of Chakia District Varanasi. On 25th February, 1975 at about 3.30 P.M. Kapildeo was knitting his cot which created some noise to which the applicants took exception. The applicants, thereafter assaulted Smt. Dulesari wife of Kapildeo with lathis, fists and kicks and also caused injuries to Kapildeo. After the incident Kapildeo was taken to the hospital by his son and Smt. Dulcsari but on way to the hospital he succumbed to his injuries. He was declared dead at the hospital. The report at the police station was lodged by Smt. Dulesari on 25-2-1975 at 5.50 P. M. at police station Chakia. The case was registered u/s 304 and 323 Indian Penal Code . 3. Smt. Dulesari was sent for medical examination. She was examined on 25-2-1975 at 6.45 P. M. She was found to have two lacerated wounds--one on the back of right half of the head and the other on the back of head. Both these injuries were simple and were caused by blunt weapon. They were fresh. 4. The body of Kapildeo was sent for post-mortem. On post-mortem it was found that Kapildeo had no visible mark of the injury on his body. His death was due to myocordial infarction and shock. 5. After the investigation the charge-sheet was submitted u/s 304 Indian Penal Code and 323 Indian Penal Code . 6. They were fresh. 4. The body of Kapildeo was sent for post-mortem. On post-mortem it was found that Kapildeo had no visible mark of the injury on his body. His death was due to myocordial infarction and shock. 5. After the investigation the charge-sheet was submitted u/s 304 Indian Penal Code and 323 Indian Penal Code . 6. The learned Magistrate before whom the charge-sheet was submitted came to the conclusion that no case u/s 304 Indian Penal Code was made out and it was a case in which a charge u/s 323 Indian Penal Code only can be framed. He, therefore, framed the charge u/s 323 read with Section 34 Indian Penal Code and tried the applicants. He convicted and sentenced them as already stated above. 7. The learned Sessions Judge, however, felt that the learned Magistrate had no jurisdiction to judge that no case was made out u/s 304 Indian Penal Code on the basis of the statements made u/s 161 Code of Criminal Procedure. He accordingly remanded the case and directed the learned Magistrate to commit the case to the court of Session. 8. I have heard the learned Counsel for the applicants and also the learned Counsel for the State. The power to commit the case to the court of Session is conferred on the Magistrate by Section 209 Code of Criminal Procedure, 1973. Section 209 Code of Criminal Procedure runs as follows:- When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall-- (a) commit the case to the court of Session, (b) subject to the provisions of this Code relating to bail remand the accused to custody during, and until the conclusion of, the trial; (c) ... 9. We are not concerned with the other clauses of the section, they are, therefore, not quoted. 10. The aforementioned section mentions clearly that in a case instituted in the court of Magistrate on the police report or otherwise he shall commit the case to the court of Session only if it appears to the Magistrate that the offence is triable exclusively by the Court of Session. 10. The aforementioned section mentions clearly that in a case instituted in the court of Magistrate on the police report or otherwise he shall commit the case to the court of Session only if it appears to the Magistrate that the offence is triable exclusively by the Court of Session. So the first requisite of the section is that the Magistrate has to take the decision on the ingredients of the offence before him whether the case is exclusively triable by the court of Session or not. In the instant case it was obvious that the deceased had no visible mark of injury on his body and that no such act of the accused as was mentioned in the first information report resulted in his death. It was also obvious from the post-mortem report that the deceased died by myocordial infarction. In such circumstances it is not surprising that it appeared to the learned Magistrate that the case was not exclusively triable by the Court of Session. 11. The learned Sessions Judge has directed the learned Magistrate to commit the case u/s 304 read with Section 34 Indian Penal Code . However, before giving any such direction it was the duty of the Magistrate to have satisfied himself if any offence u/s 304 Indian Penal Code has been made out. For an offence to fall u/s 304 Indian Penal Code it was the duty of the learned Sessions Judge also to have gone through the provisions of Section 300 Indian Penal Code and to see if the case fell under any of the Exceptions to Section 300 Indian Penal Code and the offence committed was culpable homicide not amounting to murder. I have examined Section 300 Indian Penal Code and also its Exceptions but I do dot find that the facts of this case constitute an offence which would fall either u/s 300 Indian Penal Code or under any of its exceptions. The learned Sessions Judge was, therefore, wholly in error in directing the case to be committed u/s 304 Indian Penal Code . The offence made out is u/s 323 Indian Penal Code and not u/s 304 Indian Penal Code . 12. The learned Sessions Judge was, therefore, wholly in error in directing the case to be committed u/s 304 Indian Penal Code . The offence made out is u/s 323 Indian Penal Code and not u/s 304 Indian Penal Code . 12. Since the appeal against the conviction of the applicants was not heard by the learned Sessions Judge on its merits the case will have to be remanded back to the learned Sessions Judge for rehearing of the appeal according to law. 13. The revision is, therefore, allowed. The order of the learned Sessions Judge directing the learned Magistrate to commit the case u/s 304 read with Section 34 Indian Penal Code to the Court of Session is hereby set-aside. The case is remanded back to the learned Sessions Judge to hear the appeal and decide it according to law. Revision allowed