RAGHAVAN Vs. ABHAS

JUDGEMENT

(1.) The question before us is whether a magistrate holding an inquiry under Chap.18 of the Code is bound to commit whenever there is evidence which, if believed, might warrant a conviction, whether, in fact, the evidence is believable or not; or whether he is entitled to go into the question whether the evidence is believable or not. The language of the Code, whether it be sub-s.(6) and (7) of S.207A that apply (the case being one instituted on a police report) or, as in this case, S.209 and 210 (the case being one instituted otherwise than on a police report) does not preclude an assessment of the evidence for the purpose of deciding whether it is believable or not. For, what it says is that if the evidence (using the word "evidence" to include all the materials which the magistrate may take into account) discloses no grounds for committing the accused person for trial the magistrate shall discharge him. Otherwise, in other words, if it discloses grounds for committing the accused for trial, the magistrate shall frame a charge and (except where he cancels the charge under sub-s.(2) of S.213) proceed to commit him. (Speaking for myself I gather that my learned brethren are not prepared to go so far I do not think that the word, "sufficient" in S.209 and 210 when they speak of "sufficient" grounds for committing the accused for "trial" serves much purpose. And its absence from sub-s.(6) of S.207A seems to me to make little difference. For, I suppose that any ground that is to be acted upon by a court of law must be a sufficient ground, and, I do not suppose that it will be suggested that, because sub-s.(6) of S.207A says that the accused is to be discharged if the evidence discloses no grounds for committing him, he is to be committed if the grounds disclosed are insufficient grounds. And, I can think of no conceivable reason why, if that is the effect of the use of the word, "sufficient" in S.209 and 210, a stronger case should be made out for committing the accused person in a proceeding instituted otherwise than on a police report than in a proceeding instituted on a police report). But, since a magistrate has no jurisdiction to try a person accused of what we might call a sessions offence and cannot either convict or acquit him, and his duty ends with seeing that no one is subjected to the ordeal of a sessions trial for a grave offence when there is not the least chance of a conviction (and that the time of the Sessions Court is not taken up with the trial of such cases) he must not embark upon a nice appreciation of the evidence based upon considerations such as probabilities, inconsistencies, and the character of the witnesses, as if he were himself competent to try the case and pronounce the accused guilty or innocent. The true rule, it seems to us, is that if the evidence in support of the charge is such as a judge might possibly believe, and, if believed might warrant a conviction, the magistrate should commit, whether he himself believes the evidence or not. On the other hand, if the evidence is such that no judge could possibly believe it, or, if the evidence, even if believed, would not make out the offence, he must discharge the accused. (We must not be understood as saying that the magistrate is precluded from considering the evidence, if, any, adduced in defence. Whether the evidence for the prosecution can possibly be believed must be decided after due consideration of the evidence for the defence, and it is not difficult to think of cases, as for example when unimpeachable evidence of an alibi is adduced, where, in the light of the defence evidence, the evidence for the prosecution can properly be characterised as evidence which no judge could possibly believe). Put differently, if there is the least possibility of a conviction, there would be sufficient grounds for commitment; otherwise not.

(2.) As we understand that decision, this is the rule laid down by the Supreme Court in R. G. Ruia v. State of Bombay AIR 1958 SC 97 , and, that being so, we think it unnecessary to refer to the numerous other authorities cited at the bar. We do not think that a different rule was laid down in Khushi Ram v. Hashim AIR 1959 SC 542 , for it seems to us that, properly understood, all that that case laid down was that, for the purpose of deciding whether there is such a complete absence of evidence as to make out a point of law for quashing a commitment under S.215 of the Code, no question as to the reliability of the evidence arises. And it would appear that no more was intended to be said in Ammad v. State of Kerala 1965 KLT 108 or in K. V. R. Panicker v. State of Kerala 1965 KLT 686 which only applied this principle to the particular cases on hand.

(3.) In the course of his order discharging the two accused persons in this case of an offence under S.330 of the Indian Penal Code, the learned Magistrate expressly stated the true rule in more places than one, and he reiterated the rule when, to use his own words, he ended by saying: