Order: This is a reference made by the District Magistrate, Mysore, under section 438, Criminal Procedure Code, after examining the records of the Munsiff-Magistrate, Hunsur, in C.C. No. 184 of 1963. The facts leading upto this reference are briefly these: The police placed a charge-sheet against the accused for offences punishable under sections 201, 302 and 404, Indian Penal Code. The case against the accused was that on 11th April, 1963, at about 1 p.m., he murdered one Doddegowda on the foot-path between Darga and Dharmapura within the limits of Javarayankatte village in Hunsur taluk, concealed the dead body in a well and misappropriated certain articles found on the dead body. The learned Munsiff-Magistrate, Hunsur, held an enquiry under section 207-A, Criminal Procedure Code. After considering the documents referred to in section 173, Criminal Procedure Code, he was of the view that the said documents disclosed no grounds for committing the accused for trial by the Court of Sessions;. but it appeared to the learned Magistrate that the accused should be tried before himself (the Magistrate) for offences punishable under sections 323 and 404, Indian Penal Code. By his order dated 20th June, 1963, the learned Magistrate discharged the accused in respect of offence punishable under sections 201 and 302, Indian. Penal Code, and framed charge against the accused for offence punishable under sections 323 and 404, Indian Penal Code. On the very same day, when the charges were read over and explained to the accused, he pleaded guilty to the charges. Accepting his plea, the learned Magistrate convicted him under sections 251-A(5), Criminal Procedure Code, for offences punishable under sections 323 and 404, Indian Penal Code, and sentenced him to rigorous imprisonment for six months on each count and directed the sentences to run concurrently. The prosecution filed a revision petition before the District Magistrate, Mysore, under, sections 435, 437 and 438, Criminal Procedure Code, against the said order of the Magistrate discharging the accused in respect of offence punishable under sections 201 and 302, Indian Penal Code. On examining the records, the learned District Magistrate considered that the accused had been improperly discharged in respect of offences punishable under sections 302 and 201, Indian Penal Code and ordered the accused to be committed for trial by the Court of Sessions for offences punishable under sections 302 and 201, Indian Penal Code. On examining the records, the learned District Magistrate considered that the accused had been improperly discharged in respect of offences punishable under sections 302 and 201, Indian Penal Code and ordered the accused to be committed for trial by the Court of Sessions for offences punishable under sections 302 and 201, Indian Penal Code. As the learned District Magistrate could not himself deal with the conviction and sentences passed by the learned Munsiff-Magistrate for offences punishable under sections 323 and 404, Indian Penal Code, he has reported the matter to this Court under section 438, Criminal Procedure Code. However, he has not himself recommended that this Court should set aside the conviction and sentences passed by the learned Munsiff-Magistrate for offences punishable under sections 323 and 404, Indian Penal Code. As the accused was unrepresented in this Court, I requested Mr. Goulay, Advocate, to appear as amicus curiae. Mr. Goulay has accordingly appeared in this case and submitted his arguments. I thank Mr. Goulay for his assistance. Mr. Goulay submitted that on the question whether the Sessions Judge or the District Magistrate can exercise powers under section 437, Criminal Procedure Code, and order the accused to be committed for trial by the Sessions Court for major offences, when the enquiring Magistrate has not discharged the accused in respect of all offences, but has framed charges for minor offences, there has been divergence of opinion between different High Courts. Mr. Goulay has referred to the decisions of the Allahabad High Court in Nahar Singh v. The State1and of the Calcutta High Court in Shambhu Charan v. The State2which took the view that it is not competent to the Court of revision under section 437, Criminal Procedure Code, to direct commitment of the accused to the Court of Sessions in respect of a major offence of which he has been discharged, when the Magistrate has framed a charge for a minor offence. Mr. Goulay also referred to the decisions of the High Courts of Madras, Andhra Pradesh, Patna, Nagpur and Gujarat which have taken the contrary view. Mr. Mahajan, the learned Government Pleader, has drawn my attention to an unreported decision of Somnath Iyer, J., in Criminal Revision Petitions Nos. 215 and 270 of 1958 in which his Lordship, after considering the conflicting decisions of various High Courts, has followed the view taken by the Madras High Court in Nalla Baligadu3. Mr. Mahajan, the learned Government Pleader, has drawn my attention to an unreported decision of Somnath Iyer, J., in Criminal Revision Petitions Nos. 215 and 270 of 1958 in which his Lordship, after considering the conflicting decisions of various High Courts, has followed the view taken by the Madras High Court in Nalla Baligadu3. His Lordship also observed that the view taken by the Allahabad High Court in Nahar Singh v. The State1was over-ruled by implication by the decision of the Supreme Court in R.G. Raid v. State of Bombay.4 In view of this earlier decision of this Court, this question is no lor ger res Integra. The District Magistrate was competent to direct the Munsiff-Magistrate under section 437, Criminal Procedure Code, to order commitment of the accused to the Court of Sessions for trial on charges for offences punishable under sections 201 and 302, Indian Penal Code. The next question is whether the conviction of the accused by the learned Munsiff-Magistrate for offences punishable under sections 323 and 404, Indian Penal Code, should be allowed to stand or whether the conviction for those offences or for either of them should be set aside. Under section 439(1), Criminal Procedure Code, the High Court may in its discretion, exercise any of the powers conferred on a Court of appeal by sections 423, 426, 427 and 428, Criminal Procedure Code. Under section 423(1)(b)Criminal Procedure Code, in an appeal from a conviction, the appellate Court may reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court of competent jurisdiction subordinate to such appellate Court or commit him for trial. If the accused had filed an appeal from his conviction, the appallate Court could have set aside the conviction for offences punishable under sections 343 and 404, Indian Penal Code, or either of them and committed the accused for trial by the Court of Sessions. Thus under section 439(1), Criminal Procedure Code, it is competent for this Court to set aside the conviction of the accused for offences under sections 323 and 404, Indian Penal Code or either of them and order commitment of the accused for trial by the Court of Sessions. The learned District Magistrate has already committed the accused to trial by the Sessions Court for offences punishable under sections 201 and 302, Indian Penal Code. The learned District Magistrate has already committed the accused to trial by the Sessions Court for offences punishable under sections 201 and 302, Indian Penal Code. The only question that remains, is whether I should, in exercise of the powers under section 439, Criminal Procedure Code, set aside the order of conviction by the learned Magistrate for the two offences or either of them. The very same act of the accused, which, according to the prosecution, amounts to murder of Doddegowda, has been held by the learned Munsiff-Magistrate to constitute the offence of voluntarily causing simple hurt. Even if the conviction of the accused for the offence punishable under section 323, Indian Penal Code, is allowed to stand, there is no impediment under section 403, Criminal Procedure Code, for the accused being tried again and convicted for any higher offence (constituted by the same act of the accused) which the Munsiff Magistrate was not competent to try. But, if the Sessions Judge convicts the accused for any higher offence constituted by the same act and sentences him for that offence, the sentence passed by the Magistrate for the lower offence and the sentence passed by the Sessions Judge for the higher offence, cannot both stand; the accused can only be punished with the more severe of these two sentences. If the Sessions Judge finds that the accused is guilty of an offence like one punishable under section 325, Indian Penal Code, which is not exclusively triable by the Court of Sessions but was also triable by the Munsiff-Magistrate, the previous conviction of the accused by the Magistrate for the offence punishable under section 323, Indian Penal Code, will bar the subsequent conviction by the Sessions Judge for such offence. If the Sessions Judge does not believe that it was the accused who assaulted the deceased, and acquits the accused, the previous conviction of the accused for an offence constituted by the very same alleged act will be anomalous. All these anomalies and difficulties can be avoided by setting aside the conviction for the offence punishable under section 323, Indian Penal Code, and the sentence therefor. All these anomalies and difficulties can be avoided by setting aside the conviction for the offence punishable under section 323, Indian Penal Code, and the sentence therefor. Regarding the offence punishable under section 404, Indian Penal Code, the fact constituting that offence is different from those constituting offences punishable under section 302, Indian Penal Code, and if the sentences therefor are allowed to stand, there will not be any impediment for trying him for offences punishable under sections 302 and 210, Indian Penal Code, and convicting and sentencing him for, or acquitting him, of both or either of these offences. As all these three offences are alleged to have been committed in the course of the same transaction, it is desirable that the accused should be tried for all these offences in the same trial to avoid the possibility of conflicting findings as to the material facts in issue on which the charges for these offences are founded and many of which may be common for more than one offence. Hence, having regard to the circumstances of this case, the conviction of the accused by the Munsiff-Magistrate for the offence punishable under section 404, Indian Penal Code, also should be set aside so that the accused may be tried de novo on the charge for that offence along with the charges for offences punishable under sections 302 and 201, Indian Penal Code. But Mr. Goulay, the learned Counsel, has pointed out that the accused has undergone major portion of the sentences imposed by the learned Munsiff-Magistrate. When the learned District Magistrate made a reference under section 438, Criminal Procedure Code, it was open to him to direct suspension of execution of the sentence pending disposal of this revision case. The mere fact that the accused has undergone a major portion of the sentences awarded by the Munsiff-Magistrate, would not be a sufficient ground for allowing the conviction for offences punishable under sections 323 and 404, Indian Penal Code, and the sentences therefore to stand. The reference is accepted, the conviction of the accused for offences punishable under sections 323 and 404, Indian Penal Code, and the sentences passed by the learned Munsiff-Magistrate are hereby set aside. The reference is accepted, the conviction of the accused for offences punishable under sections 323 and 404, Indian Penal Code, and the sentences passed by the learned Munsiff-Magistrate are hereby set aside. The Sessions Judge is hereby directed to try the accused on the charge for an offence punishable under section 404, Indian Penal Code, along with the charges for offences punishable under sections 302 and 201, Indian Penal Code. S.V.S. ----- Reference accepted.