Gulab Khan and ors. Vs. Emperor

criminal procedure code (act v of 1898), section 437 - penal code (act xlv of 1860; sections 342, 357 and 467--accused discharged of offences under sections 342 and 357--sessions judge directing enquiry into an offence of forgery under section 467--illegal order--jurisdiction. - orderstanley, c.j.1. this is an application to set aside an order of the additional sessions judge of aligarh, dated the 17th of august 1909, whereby he revoked the order of the magistrate of the first class of the 4th of june 1909, discharging the applicants.2. it appears that the applicants were charged with offences under sections 342 and 357 of the indian penal code. these offences were not proved and the court discharged the accused. on an application for revision of the order of discharge the learned sessions judge was of opinion that the charges under sections 342 and 357 were not appropriate charges in view of the facts appearing in evidence but that the real charge against the accused was one of forgery. he accordingly set aside the order of discharge purporting to act under section 437 of the code of criminal procedure, and substantially directed further enquiry with a view to a prosecution for an offence punishable under section 467. i am of opinion that the learned sessions judge had no jurisdiction under section 437 to pass this order and it must, therefore, be set aside. but the setting it aside is in no way to prejudice the opposite party in any prosecution of the applicants which he may institute for the offence punishable under section 467. it will be open to the opposite party to take such proceedings against the applicants under that section as he may be advised.3. the application is granted and the order of the 17th of august 1909 is set aside.