RAMCHANDRA BABAJI GORE Vs. EMPEROR

JUDGEMENT

(1.) This is an application in revision which comes before the Court in the following circumstances. The present applicant was charged jointly with accused No. 2, who was his first wife and who has recently died, with the murder of a woman called Tulsa, who was the second wife of the applicant, accused No. 1, so that the charge was under Section 302, Indian Penal Code. The matter was inquired into by the City Magistrate, First Class, Ahmednagar, who discharged the accused. Against that order of discharge, the complainant, who was the uncle of the deceased woman, applied in revision to the Sessions Judge of Ahmednagar, and the Sessions Judge set aside the order of discharge and directed the accused to be tried in the Sessions Court. From that order this application is made. On the application for a Rule, it appeared to the Bench which heard the application that, whether or not the order of the Sessions Judge was right on the merits, the order was contrary to the ruling of this Court in Parasharam Bhika V/s. Emperor, A.I.R. 1933 Bom. 158 Ind. Rul. (1933) Bom. 266, and as the Bench felt some doubt as to whether the ruling in that case was correct, the Rule was made returnable before a Full Bench.

(2.) This being a charge under Section 302, Indian Penal Code, the case is one exclusively triable by a Court of Session, and therefore, the inquiry before the Magistrate had to be conducted under Section 206 and the sections following in Chap. XVIII, Criminal Procedure Code, Section 208 provides that in such a case the Magistrate shall hear the complainant and take all such evidence as may be produced in support of the prosecution or on behalf of the accused or as may be called for by the Magistrate. Then Section 209, provides that when the evidence referred to in Section 208, 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, the Magistrate shall, if he finds that there are not sufficient grounds for committing the accused for trial, record his reasons and discharge him. That was the section under which the Magistrate discharged the accused in this case. Then Section 436, enables the Sessions Judge to direct further inquiry to be made in a complaint which has been dismissed under Section 203 or Section 204, or in the case of any person accused of an offence who has been discharged. So that that section covers the discharge of an accused person in respect of an offence not exclusively triable by a Court of Session. Then Section 437 deals with the discharge of an accused exclusively triable by the Court of Session, and under that section the Sessions Judge or District Magistrate, if he considers that an accused person has been improperly discharged by the inquiring Court, may cause him to be arrested, and may thereupon, instead of directing a fresh inquiry, order him to be committed for trial upon the matter of which he has been in the opinion of the Sessions Judge improperly discharged. In Parasharam Bhika V/s. Emperor, A.I.R. 1933 Bom. 158 Ind. Rul. (1933) Bom. 266, the Magistrate had discharged the accused person under Section 253, Criminal Procedure Code, which deals with inquiries before a Magistrate in warrant cases triable by a Magistrate. But the Court held that the discharge should really have been under Section 209, and that the principles governing discharges under the two sections, viz., Secs.209 and 253, are the same. The gist of the decision is contained in the judgment of Broomfield, J. at p. 440, where he says this: 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.

(3.) If that ruling is right, it involves a considerable departure from the language of Section 437. Section 437 empowers the Sessions Judge to set aside an order of discharge whenever he thinks that the order is improper. If the ruling of this Court is to be accepted, the power can only be exercised when the order is perverse or manifestly unreasonable and inconsistent with an honest appreciation of the evidence before the Court. In considering the circumstances which may entitle a Sessions Judge to come to the conclusion that an order of discharge is improper, it is necessary, in the first instance, to notice, what the Magistrate is required to do in the inquiry before him, that is to say, to consider what would be a proper order. Now, it is quite clear, I think, that under Section 209, the Magistrate has got to consider the evidence. He has got to satisfy himself that there are sufficient grounds for committing the accused person for trial, and to do that he must consider the evidence, both its nature and credibility; but he has not got to satisfy himself that there is a proper case for convicting the accused; he is not to try the accused, that being a duty imposed by the Code on the Sessions Court. It is no doubt difficult and undesirable to attempt to define precisely the limits of the powers of Magistrates conducting preliminary inquiries. Experienced Magistrates do not in practice find any great difficulty in dealing with inquiries under Section 206, and the following sections. They have to be satisfied before committing the accused that there is a fit case to be tried. If the Magistrate comes to the conclusion that there is evidence to be weighed, he ought to commit the accused for trial and he ought not to discharge the accused merely because he thinks that if he were to try the case himself, he would not be prepared to convict the accused on the evidence before him. But if he comes to the conclusion that the evidence for the prosecution is such that no tribunal, whether a Judge or jury, could be expected to convict the accused, then he ought to discharge him. Sometimes cases arise which are near the line, and the Magistrate may feel legitimate doubt as to his proper course. If he commits a case where he ought to discharge, result is a waste of public time and money in conducting an unnecessary trial, and this result Magistrates should try to avoid. On the other hand, if he discharges an accused whom he ought to commit, then the Sessions Judge or District Magistrate has power either under s.436 or Section 437, to take action in the matter. By these sections the legislature has imposed checks upon improper orders of discharge, and the powers conferred ought not to be frittered away by the Courts. Under Section 137, which applies in this case, all that the Sessions Judge has to do is to come to the conclusion that the order for discharge was improper. He may, as it seems to me, reach that conclusion not only on the grounds indicated in the judgment of Broomfield, J., in Parasharam Bhika V/s. Emperor 143 Ind. Cas. 289; A.I.R. 1933 Bom. 158; (1933) Cr. Cas. 470 : 34 Cr. L.J. 564 : 57 B. 430 : 35 Bom. L.R. 245; Ind. Rul. (1933) Bom. 266, that is to say, that the order was perverse or manifestly unreasonable and inconsistent with an honest appreciation of the evidence in the case; but also on the ground that the Magistrate has, however competently, taken upon himself the discharge of a duty which under the Code is entrusted to the Sessions Court, that is to say, the duty of appreciation of evidence of doubtful credibility. On that ground, I think, the Sessions Judge clearly can set aside an order of discharge, but I am prepared to go further and to hold that in a proper case he may do so on the ground that he disagrees with the appreciation of evidence by the Magistrate. In saying that, I am differing from the view expressed by this Court in In re Narainan Venkatesh 40 Ind.Cas 294; A.I.R. 1917 Bom. 227 : 18 Cr. L.J. 646 : 19 Bom. L.R. 350.