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Criminal Revision No. 325 of 1967, decided on 13th November 1968.

Chap. XVIII‑Inquiry into cases triable by Court of Session or Nigh Court‑Function of Magistrate limited‑Magistrate can of necessity appreciate evidence but cannot weigh evidence and circumstances of case for and against accused.

The function of the Magistrate in an inquiry under Chapter XVIII of the Code of Criminal Procedure is only to ascertain if there are good materials to make out a prima facie case against the accused persons, The Magistrate under section 209, Cr. P. C. is required only to see if there are sufficient grounds for committing the accused to the Court of Sessions for trial. His function is thus limited. In discharging that limited jurisdiction he can of necessity appreciate the evidence but cannot weigh the evidence and circumstances of the case for and against, for the purpose of finding out the guilt or otherwise of the accused, a task which is left to the Court of Sessions. There are numerous authorities on the point.

Mazharul Haq v. Ishaque Sardar and others P L D 1962 S C 480 ; Hari Ballay Shaha Roy v. Gopi Ballay Shaha and anothers P L D 1959 S C 347 ; The State v. Sorban Sardar P L D 1962 Dacca 221 and Abdul Gani Chakladar v. Gulwar Ali Chakladar and P L D 1967 Dacca 756 ref.

S. 437 read with S. 209‑Commitment of accused improperly discharged by Magistrate‑Prima facie evidence in case and allegations against accused not frivolous‑Magistrate discharging accused against weight of evidence on record Sessions Judge, in circumstances, held, rightly set aside order of discharge and directed commitment o/' accused to Court of Sessions.

Aminul Haq for Petitioner.

S. S. Haider for the State

This Rule is directed against an order dated the 29‑4‑67 passed by the learned Sessions Judge Khulna under section 437, Cr. P. C. setting aside the order of discharge under section 209, Cr. P. C. and directing the Magistrate to commit the accused persons to the Court of Sessions for trial.

The short facts are that on the 29th September 1964 at about 7‑30 a.m. when P. W. 2 Anil Kumar Biswas went to the ghat of his tank for washing, the accused persons fired gun shots to him causing injuries on his forehead. Anil raised alarm and the neighbours came and took him to his house. First Information Report was lodged with the local police who investigated into the case and submitted a charge. slieet against the accused persons under section 307/326/307/114, P. P. C.

The matter in normal course went to Mr. A. A. Choudhury Magistrate, 1st Class, Satkhira for enquiry under Chapter XVIII of the Code of Criminal Procedure. 15 witnesses were examined in the case on behalf of the prosecution. The learned Magistrate found no materials to commit the accused persons to the Court of Sessions and accordingly discharged them under section 209, Cr. P. C. by a lengthy judgment dated .16‑1‑67. the complainant challenged the propriety of the said order of discharge before the Sessions Judge, Khulna under section 437, Cr. P. C. the learned Sessions Judge on appraisal of the evidence and materials on record found a good prima facie case against the accused persons and accordingly directed the learned Magistrate to commit them to the Court of Sessions for trial. The accused petitioners being aggrieved thereby moved this Court under section 439, Cr.P.C: and obtained the Present Ride:

P. W. 2 Anil Kumar Biswas is the victim of the occurrence. Lie has stated in his deposition that on the date of occurrence at about 7‑30 a.m. he went to the ghat of his tank and while he was brushing his tooth he saw accused Dhona, Madhu and an unknown person behind him. Dhona asked that man why he was waiting and thereupon that unknown man brought out a barrel of a gun and fired at him. He received several injuries on his forehead. He was thereafter taken home and a local doctor extracted two pellets from the injuries on his person. P. Ws. 4‑11 heard the gun shots and saw the accused persons running away with a gun from the bank of the tank P. W. 12, A. S. I. of police seized some pellets from the place of occurrence. Thus there are good prima facie materials to make out a case against the accused persons under section 307, P. P. C. But the learned Magistrate has discharged the accused on the grounds that the Court witness Dr. Syed Ali did not support the prosecution case and that the witnesses examined in the case were mostly interested and their evidence were highly discrepant. He observed in this connection "prosecution has thus failed to prove that accused Zaman Gazi fired a gun at P. W. 2 Anil. It appears that the prosecution story was fabricated with the help of police Assistant Surgeon, Satkhira and some closely connected persons of P. W. 2 Anil".

The function of the Magistrate in an inquiry under' Chapter XVIII of the Code of Criminal Procedure is only to ascertain if there are good materials to make out a prima facie case against the accused persons. The Magistrate under section 209, Cr. P. C. is required only to see if there are sufficient grounds for committing the accused to the Court of Sessions for trial. His function is thus limited. In discharging that limited jurisdiction he can of necessity appreciate the evidence A but cannot weigh the evidence and circumstances of the case for and against, for the purpose of finding out the guilt or otherwise of the accused, a task which is left to the Court of Sessions. There are numerous authorities on the point. The cases reported in P L D 1962 S C 480; P L D 1959 S C 347, P L D 1962 Dacca 221 and P L D 1967 Dacca 756 may in this connection be referred to.

In the instant case it appears that the learned Magistrate in his lengthy judgment has not only weighed the evidence in the yard stick of a scale but has also travelled beyond his jurisdiction in rejecting the evidence of the P. Ws. either for this or for that reason. He has thus assumed the function of the trial Court to find out guilt of the accused, instead of seeing whether the prima facie case has been made out against. I have looked into the evidenced in my opinion the learned Magistrate has definitely made an Ass, trespassed into the province of the Sessions Court and practically usurped the function of the Court of Sessions.

I have already indicated earlier that there are good prima facie evidence in the case and the allegations against the accused are not frivolous. The learned Magistrate has discharged tile accused against the weight of evidence on record.

The learned Sessions Judge has, in the circumstances, rightly set aside the impunged order of discharge and directed the accused persons to be committed to the Court of Sessions.

One thing to be pointed out here is that the learned Sessions Judge directed the Magistrate to commit the accused to the Court of Sessions for trial under section 302/34, P. P. C. The prosecution case is one under section 307, P. P. C. for an attempt to murder. It was never a case of section 302, P. P. C. The learned Sessions Judge himself also treated the case as one under section 307, P. P. C. but wrongly qouted section 302, P. P. C. towards the end of his order. This seems to be a bona fide mistake. An experienced sessions Judge is not expected to commit such a mistake in quoting the section. However, this being a bona fide mistake. I do not think the accused petitioners have been prejudiced in any way on that score alone. As indicated earlier a prima facie case under section 307, P. P. C. having been made out, the accused should be committed to the Court of Sessions for trial under that section.

The Rule is accordingly discharged.

Rule discharged.

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