In Re: Kandimalla Thirupelu and Others

Happell, J.—The order of the learned Sessions Judge directing the Taluk Second Class Magistrate of Pulivendla to hold a further inquiry

and consider whether there are, or are not grounds for inquiring into a charge against the accused of a more serious character than the charge in

respect of which they were committed cannot be supported. The Sessions Judge made the order because in the course of the examination of P.W.

1, it appeared that in connection with the transaction in which P.W. 1 was himself injured a certain Sultan had been killed. No charge-sheet,

however, was framed in connection with the death of Sultan and the accused were not committed on any charge connected with his death. u/s 436

of the Code of Criminal Procedure a Sessions Judge may direct further inquiry into the case of a person who has been discharged; and u/s 437 he

can order the commitment of a person who has been discharged instead of directing a fresh inquiry. There appears, however, to be no provision of

law which enables a Sessions Judge either to take cognizance of an offence himself or to direct a Magistrate to take cognizance of an offence. A

Sessions Court is not a Court of first instance. In the present case, the murder, if it was a murder of Sultan would constitute a separate offence

from the attempted murder of P.W. 1; and the order of the Sessions Judge in effect directs the Magistrate to take cognizance of the offence. The

Magistrate himself no doubt in the course of the inquiry could have taken cognizance of the offence upon his own knowledge or suspicion u/s

190(c) of the Code of Criminal Procedure and having taken cognizance, if he was satisfied that a prima facie case had been made out on the

evidence, he could have committed the accused. He did not, however, do this. The petition is allowed and the order of the Sessions Judge under

reference is set aside. He will now proceed to try the accused in the Sessions case committed to him.