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Power to

order commitment.

Power to

quiry.

under section 176 are not proceedings within the meaning of this section.

436. When, on examining the record of any case under section 435 or otherwise, the Court of Session1 or District Magistrate considers that such case is triable exclusively by the Court of Session, and that an accused person has been improperly discharged by the inferior Court, the Court of Session or District Magistrate may cause him to be arrested, and may thereupon, instead of directing a fresh inquiry, order him to be committed for trial 2 upon the matter of which he has been, in the opinion of the Court of Session or District Magistrate, improperly discharged:

Provided as follows

(a) that the accused has had an opportunity of showing cause to such Court or Magistrate why the commitment should not be made 3:

(b) that, if such Court or Magistrate thinks that the evidence shows that some other offence has been committed by the accused, such Court or Magistrate may direct the inferior Court to inquire into such offence.

437. On examining any record, under section 435 or order in- otherwise, the High Court or Court of Session may direct the District Magistrate by himself or by any of the Magistrates subordinate to him to make, and the District Magistrate 5 may himself make, or direct any subordinate Magistrate to make, further inquiry into any complaint which has been dismissed

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Session, the use of the term 'inferior' is no longer necessary, and accordingly the term used is 'subordinate,' 8 Mad. 19.

5 but not a Deputy Magistrate placed in charge of the current duties of the District Magistrate's office, II Cal. 236.

i. e. an inquiry upon further materials, not a rehearing upon the same evidence, 10 Cal. 207, 1027: 12 Cal. 552: 8 Mad. 336; but see 10 Bom. 131: 9 All. 52.

The 'further inquiry' should ordinarily be conducted by the Magistrate who first inquired into the case, 8 Mad. 299.

under section 203, or into the has been discharged 1.

case of

any accused person who

High

438. The Court of Session or District Magistrate 2 may, if Report to it or he thinks fit, on examining under section 435 or otherwise Court. the record of any proceeding, report for the orders of the High Court the results of such examination, and, when such report contains a recommendation that a sentence be reversed 3, may order that the execution of such sentence be suspended, and if the accused is in confinement that he be released on bail or on his own bond.

6

7

Court's

powers of

439. In the case of any proceeding 5 the record of which has High been called for by itself, or which has been reported for orders, or which otherwise comes to its knowledge, the High Court revision. may, in its discretion, exercise any of the powers conferred on a Court of appeal by sections 195, 423, 426, 427 and 4288, or on a Court by section 338, and may enhance the sentence; and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in manner provided by section 429 10.

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No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence.

16 All. 367. The order to make further inquiry sets aside a prior order of discharge, and leaves the inquiry before the Magistrate open (as it was before that order) to further evidence under sec. 252, and to decision under sec. 253 and subsequent sections of ch. xxi, 7 Mad. 456.

2 but not a Joint Magistrate of a District, 14 Suth. Cr. 25. A District Magistrate who considers that there has been a miscarriage of justice in the Sessions Court should not report the case for orders under this section, but communicate with the Public Prosecutor, 9 All. 362.

3 In the absence of such recommendation there seems no power to admit the accused to bail, 23 Suth. Cr. 40. But see sec. 498. 4 Chap. xxxix, infra.

6

5 whether judicial or non-judicial.

7

2 Mad. 38.

Thus, it may annul a conviction, even though, in consequence of the expiry of the sentence, it may not be possible to interfere with the latter, 7 All. 135; and if it considers that the accused has been improperly discharged, it may order him to be committed for trial, 6 All. 40, and see I All. 139.

But in non-appealable cases the High Court, except on very exceptional grounds, will not exercise under this section the powers of an Appellate Court, 8 Bom. 197.

" so as to alter its nature, 6 All. 622 II Cal. 530.

10 Except in very exceptional instances, these powers will not be exercised in reference to questions of fact, 6 All. 485.

Optional

with Court to hear parties.

Statement by Presi

Where the sentence dealt with under this section has been passed by a Magistrate acting otherwise than under section 34, the Court shall not inflict a greater punishment for the offence which, in the opinion of such Court, the accused has committed, than might have been inflicted for such offence by a Presidency Magistrate or a Magistrate of the first class.

Nothing in this section applies to an entry made under section 273, or shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction 1.

440. No party has any right to be heard either personally or by pleader before any Court when exercising its powers of revision provided that the Court may, if it thinks fit, when exercising such powers, hear any party either personally or by pleader, and that nothing in this section shall be deemed to affect section 439, paragraph two.

441. When the record of any proceeding of any Presidency dency Ma- Magistrate is called for by the High Court under section 435, gistrate of the Magistrate may submit with the record a statement setting grounds of forth the grounds of his decision or order and any facts which he thinks material to the issue; and the Court shall consider such statement before over-ruling or setting aside the said decision or order.

his deci

sion.

lower Court

High 442. When a case is revised under this chapter by the Court's order to be High Court, it shall certify its decision or order to the Court certified to by which the finding, sentence or order revised was recorded or Magis- or passed, and the Court or Magistrate to which the decision or order is so certified shall thereupon make such orders as are conformable to the decision so certified; and, if necessary, the record shall be amended in accordance therewith.

trate.

1 But as to revising an order of acquittal, see 9 All. 134.

A Divisional Bench of a High Court has no power under this section to

review its judgment pronounced in a criminal case, 10 Bom. 176: 7 All. 672; but see 8 Cal. 63, 72.

PART VIII.

SPECIAL PROCEEDINGS.

CHAPTER XXXIII.

CRIMINAL PROCEEDINGS AGAINST EUROPEANS AND

AMERICANS.

trates who

may in

443. No Magistrate, unless he is a Justice of the Peace, Magisand (except in the case of a District Magistrate or 1 Presidency 1 Magistrate) unless he is a Magistrate of the first class and an quire into European British subject 2, shall inquire into or try any charge charges against an European British subject 2.

and try

against E. B. subjects.

siding in

444. No Judge presiding in a Court of Session, except the Judge preSessions Judge 3, shall exercise jurisdiction over an European Court of British subject unless he himself is an European British Session. subject; and, if he is an Assistant Sessions Judge, unless he Assistant has held the office of Assistant Sessions Judge for at least Judge. three years, and has been specially empowered in this behalf by the Local Government *.

Sessions

committed

445. Nothing in section 443 or section 444 shall prevent Cognisance any Magistrate from taking cognisance of an offence committed of offence by any European British subject in any case in which he could by E. B. subject. take cognisance of a like offence if committed by another

person:

Provided that, if he issues any process for the purpose of compelling the appearance of an European British subject

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Sentences of Provin

accused of an offence, such process shall be made returnable before a Magistrate having jurisdiction to inquire into or try the case.

446. Notwithstanding anything contained in section 32 cial Magis. or section 34, no Magistrate other than a District Magistrate trates. or 1 Presidency Magistrate shall pass any sentence on an European British subject other than imprisonment for a term which may extend to three months or fine which may extend to one thousand rupees, or both 2.

When com

to be to

Court of

Session and when to

And a District Magistrate shall not pass any such sentence other than imprisonment for a term which may extend to six months, or fine which may extend to two thousand rupees, or both 3.

447. When an European British subject is accused of an mitment is offence before a Magistrate, and such offence cannot, in the opinion of such Magistrate, be adequately punished by him, and is not punishable with death or with transportation for life, such Magistrate shall, if he thinks that the accused ought to be committed, commit him to the Court of Session, or, in the case of a Presidency Magistrate, to the High Court *.

High Court.

Trial of

offences of which one

others are

When the offence which appears to have been committed is punishable with death or with transportation for life, the commitment shall be to the High Court *.

448. Where any person committed to the High Court 4 under section 447 is charged with several offences of which is, and the one is punishable with death or transportation for life and the others with a less punishment, and the High Court considers that he should not be tried for the offence punishable with death or transportation, the High Court may nevertheless try portation him for the other offences.

not, punishable

with death

or trans

for life.

Sentences

of Court of Session on

449. Notwithstanding anything contained in section 31, no Court of Session shall pass on any European British subject E. B. sub- any sentence other than a sentence of imprisonment for a term jects. which may extend to one year, or fine, or both.

Inserted by Act III of 1884,

sec. 5.

2

4 All. 141.

Added by Act III of 1884, sec. 5. See sec. 4, cl. (i), supra, p. 62; and in British Burma, see sec. 185, para. 2.

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