K. NARAIN, J. ( 1 ) THIS revision purporting to be under Sections 399/401 Cr. P. C. is directed against the order dated 13. 8. 1993 rendered by First Addi. District and Sessions Judge, Kanpur Nagar in S. T. No. 510 of 1992 framing charge against the accused applicant under Sec. 308/34 I. P. C. ( 2 ) THE facts giving rise to the present application will need a little reference for proper appreciation of the applicable law. A first information report was lodged with the police on 16. 8. 1987 by one Rakesh Kumar Sharma conveying that he was going to Sarsaul from Kanpur on that day, and around 11 a. m. when his tempo was near Narbal tun, some scuffle took place between Nasir, the driver of tempo on one hand and Munnu Lal that is, one of the present applicants. Rakesh Kumar Sharma according to the allegations in the F. I. R. tried to intervene, whereupon Munnu Lal and Babu Singh assaulted him also with the help of Sariya iron rods causing serious injuries in the head region. The First Information Report described offence as one under Sec. 308 I. P. C. A copy of injury report has also been filed and it shows simple injuries upon the person concerned. Since the charge has been framed under Sec. 308 I. P. C. , the applicants have come in revision. ( 3 ) IN order to properly appreciate the subject matter of charge, one has to keep in mind provisions various sections of Indian Penal Code as well as Code of Criminal Procedure. For the purposes of offences under Sections 307 I. P. C. , the offence should not be/thought of unless a situation is created, whereby it could be said that there was apprehension of death. The words usually uttered while assaulting the opponents Mardo Sale Ko, Aaj jan se Mar Dab generally do not show intention but are exclamations for extra courage and creating an awe with the victim. If an attempt is made with such words even to give a thrash, it may not be an offence of attempt, to commit murder or culpable homicide. The instant case has been somewhat more simple. There was nothing in the matter of intention against the present informant. If an attempt is made with such words even to give a thrash, it may not be an offence of attempt, to commit murder or culpable homicide. The instant case has been somewhat more simple. There was nothing in the matter of intention against the present informant. According to the F. I. R. itself, the dispute was between the tempo driver and the informant and even between them there was no indication of any mind to commit murder what to say of making any effort to cause such injury that could have been likely to cause death or even the thought of to giving rise an impression of attempt to commit culpable homicide at all. ( 4 ) FEW sections of the Code of Criminal Procedure which have to be kept in mind, arc contained in chapter XVII of the Code of Criminal Procedure. After opening of the case by the prosecution under section 226 Cr. P. C. the Court of Sessions has to either discharge, if there be good reason for it, the accused under section 227 Cr. P. C. or frame charge under section 228 Cr. P. C. Section 228 Cr. P. C. itself contains a further direction though impliedly for further application of mind by the Judge as to what offence could be said to have been committed by the accused. This, of course, is after consideration and hearing as could be thought of in view of Sec. 226 Cr. P. C. The Session Judge then has to come a conclusion if the accused has committed any offence. Here again a division take place. If the offence that can be thought of is not exclusively triable by the court of Sessions, the Sessions Judge is expected to frame charge (presumably of the offence that appears to him to have been committed and which is not cognizable by the court of Sessions) and then transfer the case for trial to the Chief Judicial Magistrate. If the Sessions Judge is of the opinion that the offence that might have been committed would be exclusively triable by the Court of Sessions, he has to frame a charge and retain the file with himself. The other factors relate to the reading ever of the charge and they may not be gone into here. If the Sessions Judge is of the opinion that the offence that might have been committed would be exclusively triable by the Court of Sessions, he has to frame a charge and retain the file with himself. The other factors relate to the reading ever of the charge and they may not be gone into here. ( 5 ) A judge is supposed to exercise his discretion and I mean a judicial discretion with judicious mind. The effort should be that the accused for that matter, both the parties are not put to in necessary harassment. To think that after the charge under Sec. 308 I. P. C. a conviction could very well be recorded under Sec. 323 I. P. C. if the charge is brought home to the accused, may not be 1 proper approach. A conviction by the Magistrate results in appeal to the Sessions Judge while if the conviction is recorded under a minor section by he Sessions Judge, the persons concerned is made 0 run upto High Court. The basic impression of aw that the accused should be tried by the court of owest jurisdiction, who could take cognizance, should be born in mind by the Judge as well, and they are not expected to entertain cases-and frame charges according to the offence designated by the police in a mechanical manner. ( 6 ) IN case there is some mistake and it turns out later on that the offence made out is rather heavy and the accused may not be properly punished by the Magistrate, the court is not weak and that the framers of the law had taken care of it, but that situation rarely arises. In the circumstances the framing of the charge by the court below under Sec. 303 I. P. C. is not justified and cannot be maintained. This revision should, therefore, succeed. ( 7 ) IT may also be mentioned that the State counsel who was also heard, had desired that informant be also given notice of the revision. This, in my opinion, will be sheer waste of time and apart from that when he has accepted the proceedings by way of one under Sec. 308 I. P. C. he has conceded impliedly to the authority of the State to deal- with his matter in so far as this case is concerned. This, in my opinion, will be sheer waste of time and apart from that when he has accepted the proceedings by way of one under Sec. 308 I. P. C. he has conceded impliedly to the authority of the State to deal- with his matter in so far as this case is concerned. Any notice to him will simply mean unnecessary delay in disposal of the revision, and consequently the trial before the trial court. ( 8 ) IN result, the revision is allowed and charge under Sec. 308 I. P. C. framed by the Sessions Judge is set aside. The Sessions Judge shall rehear the parties under Sections 225 and 226 Cr. P. C. and record fresh order according to law. Petition allowed, matter remanded. .