Jwala Prasad, J.
1. This is a reference by the Sessions Judge of Muzaffarpur under Section 438 of the Code of Criminal Procedure recommending that the commitment of the accused to the Court of Sessions by the Magistrate of Motihari for offences under Sections 408 and 477-A of the Indian Penal Code be set aside.
2. The accused has been charged with criminal breach of trust by the Sub-Divisional Magistrate of Motihari under the aforesaid sections in respect of a sum of Rs. 9-6 a booking clerk on the Bengal and North Western Railway Company and also with having altered the register to conceal the alleged defalcation. The offence under Section 408 is triable by the Court of Sessions as well as by a Magistrate of the First Class and the offence under Section 477-A was formerly triable by the Court of Sessions only and is now triable also by a Magistrate of the First Class. The Magistrate was under a misapprehension that the offence under Section 477-A was exclusively triable by the Court of Sessions. He accordingly thought that he had no other option but to commit the accused to the Court of Sessions. He expressly states this as his reason for committing the accused. It seems that if he had not been under the aforesaid misapprehension probably he would not have committed the accused to the Court of Sessions. Under Section 207 a Magistrate can commit an accused to the Court of Sessions where the case is triable exclusively by that Court, or where in his opinion the case ought to be tried by the Court of Sessions. The offence in this case is not exclusively triable by the Court of Sessions. Therefore, the Magistrate could only commit the accused to the Court of Sessions if he had been of opinion that the case ought to be tried by that Court. He must give reasons for his entertaining that opinion, for the order of commitment is judicial order. It was held to be so in the case of Emperor v. Mahammad Khan Rajakhan Pathan 1 Ind. Cas. 104 : 9 Cr. L.J. 163 : 11 Bom. L.R. 18 : 5 M.L.T. 225 vide also Queen-Empress v. Kayemullah Mandal 24 C. 429 : 1 C.W.N. 414 : 12 Ind. Dec. (N.S.) 954.
3. The reference is, therefore, accepted and as recommended by the learned Sessions Judge the commitment is quashed and the case is restored to the file of the Sub-Divisional Magistrate to dispose of it in accordance with law. If he be of opinion that the gravity of the case requires that it should be tried by the Court of Sessions, he would be at liberty to commit the accused to the Court of Sessions giving reasons therefor. If, on the other hand, he is not of such opinion, then he would try the case himself.