GOPAL SEWAJI KULMI Vs. STATE

JUDGEMENT

(1.) THIS is an application by six out of seven persons who at this stage are to be tried by the Court of Sessions on different charges including 302 read with 149 and 147, Indian Penal Code. Out of these seven who were challaned, only one was committed to sessions by the Magistrate on a charge under section 302, Indian Penal Code and the rest discharged because the Magistrate felt that the case under sections 147 and 149 against the other six was not satisfactory. On an application by the State, the Sessions Judge, set aside the order of discharge and directed that the six applicants also should be tried along with the one already committed under the charges already mentioned. They have come up in revision alleging that the Magistrate was acting within his jurisdiction in ordering the discharge and as his order has not been held to be perverse, the Sessions Judge should not have directed the trial of these persons and as such the new charges should be quashed. Stated thus, it is simple question and the Sessions Judge was certainly competent under the law to direct the trial of the discharged persons. Incidentally, however, the scope of the Magistrate's jurisdiction in commitment proceedings, and of the Sessions Judge's jurisdiction in ordering the trial of persons discharged by the Magistrate, have been canvassed at some length. These questions do arise frequently and though the case -law is practically unanimous in spirit, the wording of some of them has led to misunderstanding; the practical importance had increased after the simplification of commitment procedure by the amendment of 1956.

(2.) IN Ramgopal v. State of Bombay, AIR 1968 SC 97, the Supreme Court has set down the general principles. Certainly, there are a number of earlier decisions by the High Courts, which have by no means been distinguished or dissented from by the Supreme Court. The position is that the inquiring Magistrate in our country, who in this regard discharges the same functions as the examining Justice in England has to make a judicial appraisal of the evidence before him. Before 1956, he would have given his attention solely or mainly, to the oral evidence recorded before him. Now, he has to examine the police diary and other documents mentioned in section 207 -A, Criminal Procedure Code, and also such evidence as might be recorded before him, especially, of the witnesses to the actual commission of the offence. He has to avoid the two extremes; firstly, of acting as a post office and framing charges and ordering commitment just on the basis of the charge -sheet; at the other extreme, of trying to weigh the pros and cons of the evidence, and the reliability of the witnesses which of course, is the function of the Sessions Court. It is because of this double danger that some of the passages in the older rulings are apt to give, if taken out of the context, a one -sided and almost self -contradictory impression. Where the first aspect is emphasized, the Courts are apt to use the word "examine", "investigate" or "assess"; while emphasizing the second aspect, they are apt seemingly to disapprove of this very process; so, in gathering the general principles, one has to read the ruling in the light of the problem immediately before the Court. However, in view of the judgment of the Supreme Court, there is no more doubt or uncertainty in this regard. The Magistrate has to see if there is a prima facie case, in other words, if the materials in the evidence and in the documents are such that the accused will be called upon to explain them. If there is no such evidence or if the material is so thin that no reasonable person acting as a Court will call upon the accused to explain it, then there should be a discharge. In some of the English rulings, this is neatly set out by saying that there should be sufficient material to go down to a Jury. Over most of our country, we do not have juries; but the principle is just the same. But the Magistrate should stop at the stage where he has given his attention to whether there is a prima facie case. If there is a prima facia case which is not altogether threadbare or shadowy, he Should not go farther and assess their value by weighing the pros and cons or balancing the credibility of witnesses and the like. That would be judging the case and not merely appreciating evidence for the limited purpose of finding out whether there is material for a charge.