RAJESHWAR PRASAD Vs. STATE

JUDGEMENT

(1.) The two petitioners and six other men were prosecuted on a charge of murder. The other men were committed to the court of Session, but the petitioners were discharged. Subsequently, an application was made to the learned Sessions Judge of Patna, and the learned Sessions Judge has ordered that they too should be committed. Hari Kandu, in whose death the petitioners are said to have been concerned, was a barahil of one Sharda Prasad. There is no doubt that he was attacked in the middle of the night while he was asleep on a verandah of his employer and was attacked by several men, one or more of whom were armed with bhalas and another of whom was armed with a gun. This gun was discharged into his body at a very close range.

(2.) The main reason why the learned trying magistrate discharged the petitioners was that they adduced evidence to show that some two or three hours before the murder was committed they had been in Patna and could not, in consequence, have taken part in it. The learned Sessions Judge has expressed the opinion that this was not altogether impossible. The possibility of its having happened is, however extremely remote indeed. The real question at issue was whether the witnesses for the prosecution or the witnesses for the defence were telling the truth. It is, I think, almost certain that either the one set of men or the other were deliberately lying. Also, speaking for myself, I think it remarkable that the petitioner should have been in a position to adduce so much evidence of alibi, and surprising that if they really were able to do so at once the alibi should not have been put forward sooner than it was during the investigation. It is arguable that the learned Magistrate ought to have left it to the Court of Session to decide where the truth lay. Magistrates, however, have a discretion as to whether they should commit or discharge, and it is I think myself scarcely possible to define the limits of that discretion, although an attempt has been made to do so by Meredith, J. in 'Moinuddin v. Sheogobind Sahu,' (23 PLT 62), a decision on which the learned Sessions Judge relied.

(3.) If the application to the court of session had been made by the public prosecutor, and if the public prosecutor had intimated that at the trial he proposed to adduce evidence in rebuttal of the alibi, I should not, I think, have inter fered. But the application was made by Sharda Prasad, who really had no locus standi to make it and who is a near relation of and ill-disposed towards the petitioners. The evid ence given by Sharda Prasad & the other wit nesses for the prosecution who assert that they were in his house when the murder was com mitted is open to a good deal of criticism. It is, I think, impossible to say that the order of the learned Magistrate was perverse or unreason able, and unless an order of discharge can be so described, it ought not, in my opinion, to be lightly set aside. If the trial of the co-accus ed ends in a conviction, and as a result of further investigation the state is in a position to adduce evidence to rebut the alibi put forward by the petitioners, it can make a further application to have them committed. The order made by the learned Sessions Judge, must, however, be set aside, and the order of discharge must, for the present at least remain in force. The application is allowed accor dingly.