BHAGWATILAL Vs. STATE

JUDGEMENT

(1.) THIS is a revision by Bhagwatilal and Dayakrishna against the order of commitment passed by the City Magistrate, Kotah, committing Daya Krishna for trial under sec. 302, and Bhagwatilal, who is Daya Krishna's father, for trial sec. 201 of the Indian Penal Code.

(2.) THE revision came up for hearing before a learned Single Judge of this Court and he has referred it to a Division Bench as it raises a point of law of some importance.

(3.) THE consensus of opinion now seems to be in favour of the view taken by Haring-ton J. in Sheobux Ram's case (8 ). This view gets support from the principle laid down by the Privy Council in Harendra Roy Chowdhury' case (7) That was a case under the Civil Procedure, and the question arose whether in a second appeal it was possible to disturb the concurrent findings of fact arrived at by the two lower courts, and their Lordships observed as follows at page 71 - "but their Lordships are of opinion that the principle of concurrent finding of fact does not apply to such a case as the present inasmuch as it is a case of no evidence, and according to the well-known principles of our law a decision that there is no evidence to support a finding is a decision of law. " What applies to evidence in support of a finding should, in our opinion, equally apply in principle to the case of evidence in support of an order of commitment. THE basis laid down by Harington J. in Sheobux Ram's case (2) is the same which is to be found in section 273 of the Code of Criminal Procedure. That section gives power to the High Court in criminal sessions trials to make an entry on the charge that it is clearly unsustainable, and such entry has the effect of staying proceedings upon that charge. This order of the High Court is clearly a matter of law, for if it was a matter of fact, the question would have to be put to the jury. THEre is no corresponding provision giving power to the Sessions Judge to make a similar entry, and it seems to us that the legislature by providing section 215 was giving powers to the High Court in respect of cases triable by sessions courts similar to those which the High Court had in respect of original sessions trials.