JUDGMENT 1. Heard learned counsel for the parties. 2. The revision applicant, by this application, seeks to challenge the order passed by the learned First Ad-hoc/Additional District Judge, Nagpur, dated 17.09.2004, in Sessions Trial No. 306/03, which reads thus- The complainant and her counsel are absent. The accused are present. The complainant has not adduced the evidence. The process to call the witnesses is not paid. There is no evidence on record to frame the charge against accused persons. Therefore, accused persons are discharged.” 3. The revision applicant had preferred a complaint case bearing R.C.C. NO. 295/92, in the Court of Judicial Magistrate, First Class, Ramtek, against the non-applicant Nos. 1 to 5 for the offences punishable under Sections 120-B, 294, 395, 451, 452, 506(2) r/w Section 34 of the I.P.C. It is not necessary to go into the details of the contents of the complaint and the allegations. Suffice it to say that one of the offences therein was triable exclusively by the Court of Sessions. During the course of the proceeding of the said complaint case, complainant & her counsel remained absent. So once B.W. was issued and later on for her absence, the accused/non-applicant Nos. 2 to 5 came to be discharged as per order of the learned J.M.F.C. Kamptee dated 24.11.2000. This order was challenged in the Court of Additional Sessions Judge, Nagpur. The said order was set aside. The proceeding continued for some time and the learned J.M.F.C. passed an order to commit the said case to the Sessions Court vide his order dated 26.06.2003. The reasons for the said order were that one of the offence punishable under Section 395 was exclusively triable by the Court of Sessions and in the verification/statement of complainant and in the complaint, there are prima facie ingredients for the offence punishable under Section 395 of Indian Penal Code and it was necessary to commit the case for trial of the abovesaid offence along with other sections, mentioned in the complaint. The copies of the complaint and other documents were directed to be supplied to the accused and the requirement of Sections 207 & 208 of Cr.P.C. were directed to be complied with. The Public Prosecutor was also notified of the said committal of the case to the Court of Sessions. 4. The copies of the complaint and other documents were directed to be supplied to the accused and the requirement of Sections 207 & 208 of Cr.P.C. were directed to be complied with. The Public Prosecutor was also notified of the said committal of the case to the Court of Sessions. 4. When the matter was being dealt with by the learned Additional Sessions Judge, the complainant and her counsel were absent, accused were present, complainant did not adduce any evidence and even process to call the witnesses was not paid. So, according to the learned trial Judge, there was no evidence on record to frame the charge against accused persons and so, the accused persons i.e. N. As. 1 to 5 were discharged. This order; presumably under Section 227 of Cr.P.C.; is challenged in this revision application. 5. Miss. U.S. Gujar, learned counsel for the revision applicant has submitted that the impugned order of the learned Additional Sessions Judge is incorrect at law inasmuch as there was no duty on the part of the complainant or her witnesses to remain present, once the matter was committed to the Sessions Court under Section 209 of Cr.P.C. for trial. According to her, the order of the learned trial Judge impugned in this revision petition is totally illegal, incorrect and improper inasmuch as it was the duty of learned Additional Sessions Judge to consider the matter in proper perspective and in no case he should have discharged the non-applicants/accused for the absence of the complainant and her counsel or the witnesses. 6. As against this, Mr. A.S. Chandurkar, learned counsel for Non-applicant No. 1 has submitted that the impugned order of the learned trial Judge is correct. 6. As against this, Mr. A.S. Chandurkar, learned counsel for Non-applicant No. 1 has submitted that the impugned order of the learned trial Judge is correct. It is submitted that the said order is passed considering the provisions of Section 227 of Cr.P.C. It is also submitted that it was wrong on the part of learned Magistrate to commit the case to the Sessions Court despite he had failed to comply with the proviso of Section 202 (2) of Cr.P.C. Learned counsel for Non-applicant No. 1 has pressed into service the observations of the Calcutta High Court in 1977 Cr.L.J. 1492 [Kamal Krishna De vs. State and another], in which it was held that, it was obligatory on the part of the Magistrate to comply with the provisions of Section 202(2) Proviso which enjoins that the Magistrate who has taken the cognizance of the offence triable exclusively by the Court of Sessions will himself make an inquiry into and in doing so call upon the complainant to produce all the witnesses and examine them on oath. It is submitted that due to non-examination of all the witnesses as contemplated by the said proviso to Section 202(2), the accused have been deprived of the statutory right to get adequate information about the charge against them and to prepare their defence. According to him, further, in view of the provisions of Section 227 of Cr.P.C., when there was no evidence on record to frame charge against the non-applicants / accused, the learned Judge was correct in passing the impugned order. He has also relied on the observations of this Court in 1996 Cr.L.J. 622 [Avertson Paul Fernandes vs. Ravindra A.L. Das and another] to contend that accused was entitled to discharge when the case was committed to the Sessions Court despite examination of the complainant or his witnesses, in view of the mandatory provision of proviso to Section 202(2) of Cr.P.C. According to him, if it is found that Magistrate has not complied with the mandatory provision of Section 202, the only course open to the Court is to discharge the accused. 7. Mr. R.B. Upadhyay, learned counsel for Non-applicant Nos. 2 to 5 has submitted that the impugned order clearly seems to be one under Section 227 of Cr.P.C., as there was no evidence on record to frame charge against the accused. 7. Mr. R.B. Upadhyay, learned counsel for Non-applicant Nos. 2 to 5 has submitted that the impugned order clearly seems to be one under Section 227 of Cr.P.C., as there was no evidence on record to frame charge against the accused. He has relied on the observations of the Apex Court in AIR 1979 SC 336 [Union of India vs Prafulla Kumar and another] 8. Mr. S.G. Loney, learned Additional Public Prosecutor, for Non-applicant No. 6. State of Maharashtra has contended that impugned order of the learned trial Court is incorrect as he has not heard the Prosecutor before passing the impugned order and it was the duty of the Prosecutor to appear before the Sessions Court in this matter and the learned Judge should have passed the order only after hearing him. 9. In view of the rival submissions of the parties, it is necessary to find out as to whether the impugned order of the learned Additional Sessions Judge is incorrect, improper and unjust at law. 10. On perusal of the provisions of Section 227 of Cr.P.C., which read thus- Section 227 -If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for doing so. It would be seen that it is the duty of the Court to consider the record of the case and the documents submitted therewith and after hearing the submissions of the accused and the prosecution in this behalf, if the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. Therefore, it is mandatory to hear the submissions of the accused and the prosecution, before proceeding to pass any order u/s 227 of Cr.P.C. 11. Chapter XVIII deals with the procedure of trial before a Court of Session. Section 225 of Cr.P.C. provides that, in every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor. Chapter XVIII deals with the procedure of trial before a Court of Session. Section 225 of Cr.P.C. provides that, in every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor. Section 226 of Cr.P.C. provides that, when the accused appears or is brought before the Court in pursuance of a commitment of the case under Section 209, the prosecutor shall open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused. Therefore, it clearly seems that provisions of Section 227 are attracted after following the procedure laid down in Section 225 and 226 of Cr.P.C. There is no provision for conducting a sessions trial after the same is committed by the committing Court under Section 209 of Cr.P.C., by the complainant or his private counsel. Even if it is assumed for a moment that the complainant and her counsel were absent, as the order under Section 209 of Cr.P.C. was notified to the Public Prosecutor, it was the duty of the Public Prosecutor to appear before the Court and to conduct the matter and present his views before the learned Sessions Judge. Merely because the complainant and her counsel were absent and witnesses were not summoned, the learned Additional Sessions Judge should not have passed such order unless he had heard the Public Prosecutor. It does not appear that after committal of the case under Section 209 of Cr.P.C., the complainant could have conducted the matter before the Sessions Court. 12. In my opinion, therefore, the impugned order of the learned Additional Sessions Judge does not withstand the rigours of Section 227 of Cr.P.C. which mandates the hearing of the prosecution before the order of discharge is passed. It equally applies even to the complaint cases which are committed by the Courts of Magistrate. 13. In this view of the matter, the impugned order does not seem to be correct, proper and just at law. However, while setting aside the same, it is necessary to remand the matter to the Court of Additional Sessions Judge, Nagpur, with a direction to hear the Public Prosecutor and then pass the necessary orders on merit. 14. As such, this revision application is partly allowed. However, while setting aside the same, it is necessary to remand the matter to the Court of Additional Sessions Judge, Nagpur, with a direction to hear the Public Prosecutor and then pass the necessary orders on merit. 14. As such, this revision application is partly allowed. The order dated 17.9.2004 in Sessions Trial No. 306/2003 is hereby quashed and set aside and the matter is remanded back to the learned trial Judge with a direction to hear the Public Prosecutor and decide the same afresh. Needless to mention that since the case is pending since 1992, he shall expedite the matter. Application partly allowed.