Full Judgment
1. The District Magistrate having reason to believe that the accused in this case had boon improperly discharged by a Subordinate Magistrate, issued a notice under Section 436, Code of Criminal Procedure, on the accused to show cause why he should not be committed for trial by the Court of Sessions. On the day on which the matter was considered, the District Magistrate thought that certain evidence should be taken before any order of commitment should be passed. He accordingly directed the Subordinate Magistrate to take that evidence. The Sessions Judge has referred this case that this order should be set aside because on the notice under Section 436 the District Magistrate was not competent to order anything short of a commitment. We observe that, in the petition to the Sessions Judge, it was amongst other matters represented that the accused was not heard on the notice. But this has not been made the subject of reference to us, and we must take it that it was either abandoned or overruled by the Sessions Judge.
2. The matter for consideration therefore is simply whether on a notice under Section 436 the District Magistrate could order a further inquiry in supersession of the order of discharge, or whether he could only either order commitment or abstain from interference. We have no doubt that from the terms of Section 436 a District Magistrate, in a case triable exclusively by a Court of Sessions, is not restricted to ordering the commitment of the accused who may have boon discharged by a Subordinate Magistrate. He is not prevented from dealing with such a case under Section 437. Section 436 contemplates a fresh or a further inquiry being held, for it empowers a District Magistrate 'instead of directing a fresh inquiry' to order the commitment of the accused, and there is nothing in the terms of Section 437 which would prevent a District Magistrate from ordering a further inquiry merely because the case may be one triable exclusively by the Court of Sessions. Section 437 declares that such an inquiry may be ordered into the case of any accused person who has been discharged.
3. The mere fact that the notice to the accused may have been merely to show cause why he should not be committed would not necessarily prevent the District Magistrate from directing a further inquiry instead of a commitment. The accused cannot possibly be prejudiced by such an order passed in his presence, and could not claim a notice, specially under Section 437, to show cause why a further inquiry should not be held. In this case the commitment could have been made, and the further evidence, which the District Magistrate desired to have taken, might be tendered at the Sessions Court, but in order to have the case clearer, the District Magistrate thought proper to have the evidence first taken, and this was certainly in favour of the accused.
4. We therefore see no sufficient reason to interfere. The case will be dealt with by the Deputy Magistrate in accordance with the order of the District Magistrate, and after taking that evidence, the Deputy Magistrate will proceed according to law.