BALWANTSINGH GHASIRAM Vs. BALDEO SINGH THOBANSINGH

JUDGEMENT

(1.) THIS application in revision is directed against the judgment and order of the Sessions Judge, Guna, by which he confirmed the order of discharge passed by the Sub-Divisional Magistrate, Bhilsa. The facts relevant to the disposal of this case are that on 27-10-1952 between the hours of 3 and 4 in the afternoon one Bhaiyalal s/o Balwant Singh was shot by a gun by some person. It is alleged that Ramkunwar, a girl of 12, who was easing herself nearby, stood up and saw Bhaiyalal fall down. It is also alleged that she ran to the village and on the way met Ramkishan and Gurubux and told them the incident. One Ganesha was sent by Suratsingh who lodged the first information report at police station, Gyaraspur. In that report the name of the accused is not mentioned. Next day that is on 28-10-1952, Balwantsingh presented an application to the Additional District Magistrate, Bhilsa, stating that Baldeosingh alias Punna killed his son. The Sub-Divisional Magistrate discharged the accused. A revision was filed before the Sessions Judge, Guna, under Section 437, Criminal P. C. That revision was also disallowed. Aggrieved by this order Balwantsingh, father of the deceased, has filed this revision.

(2.) MR. Dey learned Counsel for the applicant contends that the Magistrate had no power to weigh the evidence and discharged the accused. In doing so the counsel contends he has arrogated to himself the powers of a trial Court. The proposition put forward by the learned Counsel is indeed a very wide proposition. The law in this behalf is laid down by Section 209, Criminal P. C. This section states as follows: (1) When the evidence referred to in Section 208, Subsections (1) and (3), has been taken, and he has (if necessary) examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him, such magistrate shall, if he finds that there are not sufficient grounds for committing the accused person for trial, record his reasons and discharge him, unless it appears to the magistrate that such person should be tried before himself or some other magistrate, in which case he shall proceed accordingly. (2) Nothing in this section shall be deemed to prevent a magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such magistrate he considers the charge to be groundless. It is clear from the language of the section that the magistrate does possess power to discharge the accused. This power, however, can be exercised only if the magistrate finds that there are no sufficient grounds for committing the accused person for trial. Now it is evident that in order to see whether there are sufficient grounds for committing the accused person for trial, it is necessary to weigh the evidence. It may, however, be stated that what has to be seen is whether there are sufficient grounds for committing the accused persons for trial and not whether there are sufficient grounds for conviction. The latter is evidently the work of the trial Court. In this preliminary enquiry all that the magistrate has to see is whether there is a prima facie case for commitment. The magistrate cannot enter into the questions of the probabilities of the case. There appears to be some controversy as to how far the magistrate is allowed to weigh the evidence under Section 209, Criminal P. C. Three kinds of cases can be conceived which are likely to come up before a magistrate. One class of cases is that in which the evidence is prima facie so clear that nobody can entertain any doubt that the matter ought to be tried. The second class is comprised of those cases in which the evidence is so palpably tainted, absurd and incredible that nobody could doubt that it would be a hardship and injustice to an accused person to allow the matter to go any further. The third class consists of those cases which fall between the first and the second category, and in which evidence is conflicting and thus requires sifting. Cases which fall in the first category must invariably be committed. The controversy centres round the cases which fall into the third category. As it is the duty of the trial Court to see whether there is sufficient evidence to sustain a conviction, it would be safer to commit the accused and leave it to the Sessions Court to weigh the probabilities and sift the evidence. There can, however, be no doubt that the cases which fall in the second category can appropriately be dealt with under Section 209, Criminal P, C. The object of preliminary enquiry is to save the accused from the prolonged anxiety of undergoing a trial for offences that cannot be brought home to him and to save the time of the court of session from being wasted over cases in which the evidence would obviously not justify a conviction. In - 'lachman v. Juala', 5 All 161 (A), Mahmood J. observed as follows: The object of the law in providing that the inquiry shall be held by the magistrate before the accused has to undergo a trial in the Court of Session, seems to be to prevent the commitment of cases in which there is no reasonable ground for conviction. This provision of the law is calculated, on the one hand, to save the subjects from prolonged anxiety of undergoing trials for offences not brought home to them; and, on the other hand, to save the time of the Court of sessions from being wasted over cases in which the charge is obviously not supported by such evidence as would justify a conviction. In 'jashanmal v. Emperor' AIR 1939 Sind 222 (B), Davis J. held as follows: The purpose of committal proceedings is not merely to place on record the case for the prosecution, but to commit to the court of session for trial an offence which, after having heard the evidence for the prosecution and for the defence, the magistrate thinks has been committed. If this be the object of the preliminary inquiry, it is axiomatic that where there is no credible evidence the magistrate must discharge the accused. To say that in every case the magistrate must commit the accused for trial is not only to defeat the object of the preliminary inquiry but also to render the provisions of Section 209 nugatory. In ' moinuddin v. Sheogobind' AIR 1941 Pat 505 (C), Meredith J. observed as follows: Nevertheless, it is one thing to weigh the evidence with a view to determining whether there are or are not sufficient grounds for commitment within the meaning of Section 209, and another to balance the evidence, as it is the duty of the sessions court to do, in order to decide upon the guilt of the accused after considering the case as a whole. It is not for the magistrate to usurp the functions of the sessions court. It is not for him to decide whether upon the whole this witness or that witness should or should not be believed. The correct view of the matter has, to my mind, been very clearly and accurately expressed by the late Sulaiman J. in - 'akbar Ali v. Raja Bahadur' AIR 1925 All 670 (D ). In that case his Lordship said : "section 213 uses the expression 'not sufficient grounds for committing the accused. ' This expression is quite different from such expressions as 'the case not proved' or 'the accused are innocent'. I agree with the view of Lindsay J. that when after hearing the evidence for the defence the magistrate comes to the conclusion that their evidence rebuts that produced for the prosecution, or renders it so incredible or unreliable that a conviction will not follow, he may pass an order of discharge, as expressed by him in - 'muhammad Abdul Hadi v. Baldeo Sahai' AIR 1922 All 168 (E ). In 'ponniah Thirumali v. Emperor' AIR 1922 Mad 43 (F), Kumaraswamy Sastri J, held as follows: To hold that where there is some evidence, however untrustworthy in the magistrate's opinion he is bound to commit a person for trial, will be to make the preliminary enquiry, directed by the Code, a mere matter of form while it is intended to be a safeguard against false or frivolous cases being sent up for trial and innocent men from being put to the trouble and expense of undergoing a trial in the court of session. In 'bilas Singh v. Emperor' AIR 1942 All 334 (G), a Division Bench of the Allahabad High. ' Court held: The magistrates should not as a general rule, play the role of a post office only and commit an accused to the court of session when there is not even a remote probability of the case ending in a conviction. In 'husaini v. Rex' AIR 1949 Oudh 68 (H), Walford J. observed as follows: Nevertheless it is the duty of the magistrate, in order to satisfy himself that there are sufficient grounds for committing the accused for trial by a sessions court, to weigh the evidence from that point of view and if he finds that evidence against the accused is totally untrustworthy, that there are facts on the record which show that no offence in fact has been committed, he must discharge the accused. In 'tarapada Biswas v. Kalipada Ghose' AIR 1924 Cal 639 (I), a Division Bench of the Calcutta High Court held that the Deputy Magistrate is entitled to form his opinion about the credibility of the witnesses though he is not bound to closely criticise the evidence. If a prima facie case is made out, he should leave the case to the jury at the sessions to form their own view of the credibility of the evidence. In every other case, he is entitled to discharge the accused. In ' parashram v. Emperor' AIR, 1933 Bom 158 (J), a Division Bench of the Bombay High Court expressed the following view: The view we take is that the magistrate is both entitled and bound to value and weigh the evidence and, that if he disbelieves the evidence and makes an order of discharge, the question whether it ought to be set aside in revision depends on whether it is a reasonable order, the criterion being, not whether the revising court agrees with it, but whether it is rational in the sense that it cannot be fairly described as perverse or manifestly contrary to the evidence. In 'mahadeo v. Satyanarain' , Beg. J. observed as follows: It is true that the power to discharge the accused under Section 209, Cr. P. C. is not so wide as the power to discharge the accused under Section 253, Cri. P. C. Still it cannot be said that while acting under Section 209, Cri P. C, the court Of enquiry is to become a mere automaton and cannot sift the evidence and believe or disbelieve witnesses. All these cases go to show that the magistrate has powers to weigh the evidence under Section 209, Cri P. C. and that if he finds that the evidence against the accused is totally untrustworthy, he is bound to discharge the accused under that section. In the present case the magistrate disbelieved the evidence of Ramkishan P. W. 3, Gurubux P. W. 4 and Ramkunwar P. W. 6 and came to the conclusion that the charge against the accused is groundless. I have gone through the evidence myself and I find that the view taken by the magistrate is based on good grounds. As the magistrate came to the conclusion that the prosecution evidence was totally untrustworthy he was fully justified in exercising the powers under Section 209, Criminal P. C. The order of discharge, therefore, cannot be called in question. After coming to the conclusion to which he did, he was bound to discharge the accused. The contention of the applicant, therefore, cannot be sustained. Accordingly the revision is dismissed.