GURAI BEWA Vs. NARAYAN PROSAD JANA

JUDGEMENT

(1.) This is a petition for revision of an order of the learned Additional Sessions Judge, Midna-pore, whereby he set aside an order of discharge under Section 209 of the Code of Criminal Procedure and directed the petitioners' commitment to the Court of Session on a charge Under Section 366 of the Indian Penal Code.

(2.) The only question for decision is whether in view of the evidence and all the surrounding circumstances of the ease the learned Magistrate's order of discharge of the petitioners was a proper one. It has been argued by Mr. Mukher-jee i'or the petitioners that Ss. 209, 210, 211 and 213 of the Code of Criminal Procedure clearly show that the learned Magistrate had jurisdiction to come to his own conclusion as to the credibility of the evidence before him and that if he was minded to disregard that evidence and to hold that no charge could be framed thereupon, the order of discharge could not be assailed. Mr. Mukherjee further argued that the Magistrate's duty does not end whenever there appears to be a prima facie case, in other words, that the learned committing Magistrate has power to scrutinise the evidence and, if satisfied that the same is unworthy of belief, to discharge the accused. Mr. Mukherjee cited certain authorities in support of his contention but at the same time conceded that there were numerous other conflicting decisions.

(3.) It is unnecessary for us to review the judicial decisions on the subject of what should be the duty of a Committing Magistrate and to lay down any precise proposition relating to his duty. It is clear however that in the exercise of his powers under Section 209, Criminal P. C., no committing Magistrate should usurp the function of the jury. As to that, in our view, there can be no dispute. One might go further than this and say that if the evidence adduced admits of a different conclusion to that which the learned Magistrate has come to, it would be his duty to send the case to the jury. There could however be a case in which the evidence is such that no conviction could in any circumstance follow. Such a case should of course be never sent to a :jury.