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Criminal Revision No. 381 of 1964, decided on 31st March 1965.

Commitment proceedings‑Function of Magistrate merely to decide whether there was a case for trial and not to weigh evidence adduced before him‑Standard of evidence necessary to find a person guilty‑Different from what is necessary to find whether or not there is a prima facie case‑Magistrate deciding as to whether prosecution had proved its case and discharging accused without saying that there was no evidence to go to trial‑Order of discharge, held, improper‑Sessions Judge's order directing commitment of accused not interfered with.

The function of the Magistrate is only to find out if there is any prima facie case. Where this power was exceeded the Additional Sessions Judge was right in his observation that the Magistrate usurped the function of the trial Court. The Magistrate found himself unable to place reliance on the evidence mainly on the ground of existing ill‑feeling and enmity among the accused and his brothers and others. Apart from the question that enmity cuts both ways, the Magistrate ought to have realised' that in view of there being eye‑witnesses in this case there ought to be a trial. Standard of evidence necessary to find a person guilty is certainly different from what is necessary to find as to whether or not there is a prima facie case. The Magistrate in this case has clearly usurped the function of a trial Court and order of discharge was, therefore, improper.

In the case under consideration the Magistrate did not say that there was no evidence to go to trial. He actually started deciding as to whether the prosecution had proved its case but he should have realised that in a committal proceeding his function was merely to decide as to whether there was a case for trial. 1t is true a Magistrate holding a preliminary enquiry should not commit a person if he finds that the evidence is such that no Court can convict the accused or in other words there is no evidence to go to trial. It was thus held that the order of discharge had been improper in this case and there should be no interference with the order directing commitment of the accused.

Hari Ballav Shaha Roy v. Gopi Ballav Shaha and Government of East Pakistan P L D 1959 S C 347 ; Nur Khan and others v. Emperor A I R 1930 Sind 99 ; Ramchandra Babaji Gore v. Emperor A I R 1935 Born. 137 ; Bilas Singh and another v. Emperor A I R 1942 All. 334 ; Tara Singh v. The State A I R 1951 S C 441 and State of Bombay v. Ramgopal Ganpatrai Buia, A I R 1952 Bom. 76 ref.

A. Alsam with Kazi Haruner Rashid for Petitioner.

Zahurul Haq for the Opposite‑Party.

In this Divisional application an order made by Mr. A. Ahmed, Additional Sessions Judge, Mymensingh, on 26‑5‑64, directing commitment of the petitioner to the Court of Sessions for trial after setting aside the order of discharge passed by Mr. M. A. Ali, Magistrate, First Class, Tangail, has been called in question.

The case for the prosecution, out of which this petition arises, is that on 7‑3‑63, the accused petitioner Abdul Gani Chowdhury fired a shot at his own brother Gulwar Ali Chakladar causing bleeding injury on his person. Gulwar Ali was at once removed to Tangail hospital where his condition was found to be serious and a statement was recorded on the same day by a Magistrate. Gulwar Ali however survived. After investigation, the Police submitted charge‑sheet against the accused petitioner on 26‑3‑63 under section 307 of the Pakistan Penal Code for having attempted to murder his brother and also under section 326 for causing grievous injury.

The defence case is that the accused had ill‑feeling with his brother and as such he has been falsely implicated in this case.

The learned Additional Sessions Judge in setting aside the order of discharge observed; "The learned Magistrate, as it appears from his judgment, has written a full‑fledged judgment on a discussion of the evidence on record as if he was trying the present case. I have gone through his judgment and found that he had usurped the function of the trial Court as he was found to weigh the probabilities, and credibilities of the witnesses.

On a perusal of the judgment of the learned Magistrate, I have also reached the same conclusion. The Magistrate has discussed the evidence adduced by the prosecution and also the points made against each individual witness challenging his credibi lity. He has not approached the case merely to find out as to whether or not there is a possibility of conviction of the accused or whether there is some evidence for consideration of the Court of Sessions which Court alone can try an offence under section 307 of the Penal Code.

On a reference to the evidence, it appears that Gulwar Ali, who has been examined as P. W. 1, is the younger brother of the accused petitioner. He says that he saw the accused coming with a gun towards him and four or five persons were trying to prevent him from coming towards him. At this, he says: " I began to run away towards south at the sight of the gun as I got frightened. When I reached the north of my house, the accused fired the gun at me and it struck me at my right arm which was pierced and the pellets entered into the right ribs".

P. W. 2 Pulu Munshi says he saw the accused firing at P. W. 1.

P. W. 3 Haji Abdul Gafur says "P. W. 1 is my brother and the accused is my elder brother". He says that his servant Madhu informed him that the accused fired at P. W. 1.

P. W. 4. Rabiullah reached the place of occurrence soon after the alleged firing took place. He saw P. W. 1 in injured condition and accused going back to his house with his gun.

P. W. 5 Yachhin Ali Chakladar is also a brother of the accused as well as P. W. 1. He says: "I saw the accused pointing to fire at him with his gun as the complainant was about to reach his house, the accused (identified in dock) fired at him and hit him."

P. W. 6 Mirza Abdus Salim is a student. He says "some people were preventing the accused from coming with a gun. I saw the accused firing at Gulwar Ali with his gun. P. W. 7 is Medical Officer. P. W. 8 is the Investigating Officer.

In this state of evidence it can never be said that it is a case of no evidence. It is true that the witnesses referred to above have been cross‑examined as usual. But that does not mean that there is no evidence to go to trial. The learned Magistrate ought to have remembered that his function was only to find out if there was any prima facie case. In this state of evidence, the learned Judge is right in his observation that the Magistrate usurped the function of the trial Court. The Magistrate found himself unable to place reliance on the evidence mainly on the ground of existing ill‑feeling and enmity among the accused and his brothers and others.

Apart from the question that enmity cuts both ways, the Magistrate ought to have realised that in view of there being eye witnesses in this case there ought to be a trial. Standard of evidence necessary to find a person guilty is certainly different from what is necessary to find as to whether or not there is a prima facie case. The Magistrate in this case has clearly usurped the function of a trial Court and order of discharge is therefore improper.

The order of discharge is not in conformity with the principle laid down by our Supreme Court in the case of Hari Ballav Shaha Roy v. Gopi Ballav Shaha and Government of East Pakistan (P L D 1959 S C 347). Shahabuddin, J. who delivered the judgment of the Court observed as follows: ‑‑

"To discharge this function the Magistrate has necessarily to appreciate the evidence. But he must bear in mind that the purpose of the enquiry is only to determine if there are sufficient grounds for making the accused stand a trial and not to decide about his guilt. He should take care to see that he does not trespass into the Province of the Sessions Court which alone can try the accused."

To the same effect is the decision in the case of Nur Khan and others v. Emperor (A I R 1930 Sind 99). In that case it was observed: "It is to be remembered that in a committal proceedings the Magistrate has only to find out whether there is a prima facie case for committal or not. I do not wish to make any pronouncement on the subject of the cases in which the Magistrate should commit end of those in which he should discharge the accused. There have been a number of rulings on this point for the guidance of the Magistrates. But it does appear that in the mofussil in Sind committal proceedings are treated too much like a final trial. In this particular case preference was given to other cases even though the committal proceedings had already been delayed for nearly 5 months and nothing more was wanted but the writing of the committal order . . . . . . I am of opinion that, especially in murder cases preference should be given to committal proceedings over other cases . . . . . . . . . ."

In the case of Ramchandra Babaji Gore v. Emperor (A I R 1935 Bom. 137) the Full Bench of the Bombay High Court consisting of Beaumount, C. J. Rangnekar and Sinvatia, JJ, held as follows:

"Under section 437, 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 Brookfield, J. in 1933 Born. 158, that is to say, that the order was perverse or manifestly unreasonable and inconsis tent with an honest appreciation of the evidence in the case; but also on the ground that the Magistrate has however or competently taken upon himself the discharge of a duty which under the Code is entrusted to the Sessions Judge, 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 the case of Bilas Singh and others v. Emperor (A I R 1942 All. 334), a Division Bench of the Allahabad High Court, consisting of Iqbal Ahmed, C. J. and Rajpal, J. observed as follows:

"The same phraseology occurs in section 210 and the words have been interpreted by all the High Courts in India as meaning that in commitment proceedings what the Magistrate has to see is whether there are sufficient grounds for commit ment and not whether there are sufficient grounds for convic tion. Where there is a good prima facie case for commitment the Magistrate is bound to commit the accused and is not empowered to enter into nice questions of the probabilities of the case and discharge the accused on the ground that in his opinion the evidence was not sufficient to sustain a conviction."

This observation fully applies to the case before us.

The point raised in this case was also considered by the Supreme Court of India in the case of Tara Singh v. The State (A I R 1951 S C 441) In that case it was held as follows:

"All that he bad to consider was whether under section 209(1) there was sufficient grounds for committing the appellant for trial and not whether, on an appreciation of the whole evidence and other material in the case, including witnesses for the defence the charge against him was proved."

In the case of the State of Bombay v. Ramgopal Ganpatrai Buia (A I R 1952 Bom, 76), a Division Bench of the Bombay High Court, observed as follows

"If there are circumstances for and against, if there are probabilities for and against, if there is evidence for and against with which there is nothing wrong prima facie, which on an appraisement by the jury may lead to a conviction or may not, his duty is to commit the case and not discharge the accused. The test is that if there is credible evidence which, if accepted, may lead to conviction, he ought to commit. If the Magistrate comes to the conclusion that the evidence is such that no Court would ever convict, he should not commit the case. In other words, if the state of the evidence is such that in a Sessions Court the Judge, at the very outset, is likely to withdraw the case from the jury on the ground of there being no evidence, or if he is likely, at the end, to direct the jury that they must acquit the accused for absence of credible evidence, he ought not to commit."

In the case before me the Magistrate has not said that there is no evidence to go to trial. He actually started deciding as to whether the prosecution has proved its case but he should have realised that in a committal proceeding his function was merely to decide as to whether there was a case for trial. It is true a Magistrate holding a preliminary enquiry should not commit a person if he finds that the evidence is such that no Court can convict the accused or in other words there is no evidence to go to trial. I therefore agree with the learned Additional Sessions Judge that the order of discharge has been improper in this case and there should be no interference with the order directing; commitment of the accused.

In view of the order of commitment and impending trial, I take particular care to say that I must not be understood to have expressed any opinion on fact one way or the other.

In the result, the order of the learned Additional Sessions Judge directing commitment of the accused after setting aside order of discharge is maintained and the Rule is discharged.

There has been long delay in the trial of this case as a result of these proceedings. I therefore direct that the learned Magis trate will now commit the accused to the Court of Sessions without delay and the Court of Sessions will give priority to this case over other cases and expeditiously dispose of the same. Let the record of the case be sent down immediately.

S. A. H.

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