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Criminal Revision No. 113 of 1966, decided on 8th October 1969.

Chap. XVIII, S. 209 Inquiry into cases friable by Court of Session-Discharge Enquiry Magistrate, functions of Magistrate required only to ascertain if there were good materials to make out a prima facie case against accused-Enquiry Magistrate weighing evidence in scale and in rejecting same travelling beyond his jurisdiction-Magistrate, held, practically assumed function of trial Court-Order of discharge, in circumstances, held, rightly set aside by Sessions Court.

The function of a Magistrate in an enquiry under Chapter XVIII of the Criminal Procedure Code is very limited and he is required only to ascertain if there are good materials to make out a prima facie case against the accused persons.

The accused were facing charges under sections 307, 324/323, 379, P. P. C. and the gun shot injury on the person of the victim had been proved by the doctor. The Enquiry Magistrate after weighing the prosecution evidence rejected the same and discharged the accused under section 209, Cr. P. C. After the order was set aside by the Sessions Judge the High Court was moved in revision:

Held, it appeared from the order of discharge that the Magistrate in his lengthy judgment had not only weighed the evidence in the scale but had also travelled beyond his jurisdic tion in rejecting the evidence of the witnesses either for this or that reason. He had practically assumed the function of the trial Court instead of limiting himself to the task of finding out a prima facie case.

Mazharul Haq v. Ishaque Sardar and IS others P L D 1962 S . C 480 ; Hari Ballav Shaha Roy v. Gopi Ballav Shaha and another P L D 1959 S C (Pak.) 347' ; The State v. Karban Sardar P L D 1962 Dacca 221; Abdul Gani Chakladar'v. Gulivar Ali Chakladar P L D 1967 Dacca 756 and Abdul Wahab and others v. The State 21 D L R 102 rel.

Razzaque Rahman for Petitioners.

S. A. Latif for the Opposite-Party.

This Rule is directed against an order dated 14-2-66 passed by the learned Additional Sessions Judge, Khulna under sec tion 437, Cr. P. C. setting aside an order of discharge dated 12-8-65 under section 209, Cf. P. C. and directing the Magistrate to commit the accused-petitioners to the Court of Sessions for trial.

The complainant-opposite-party brought a case on the allegations that on the 9th Poush 1369 B. S. while he was reap ing his paddy from his land with his sons and others, the accused-petitioners along with others being armed with gun, lathis, surkis, loos, etc. came upon the said land and attacked the complainant party. Accused-petitioner Rajjab Ali Sk. fired the gun to the complainant causing bleeding injury, accused Saukat Ali Sk. assaulted him with the blunt side of a daos and accused Hashmat Ali Sk. and accused Haiyau Ali assaulted him with lathis. Accused Hashmat also assaulted Amjad, son of the complainant with lathi. The miscreants then took away reaped paddy worth Rs. 275 from the said land.

The local police investigated into the case and submitted charge-sheet against the accused persons under sec tion 307/324/323/379, P. P. C.

The matter in normal course was enquired into by Mr. S. Nakitullah, Honorary Magistrate, 1st Class, Bagerhat. Seven witnesses were examined in the preliminary enquiry. 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 order dated 12-8-1965.

The complainant challenged the propriety and legality of the above order before the Sessions Judge, Khulna under 'Sec tion 437, Cr. P. C. The learned Additional Sessions Judge, on appraisal of the evidence and materials on record, found a good prima facie case against the accused persons and accordingly set aside the order of discharge and directed the learned Magis trate to commit them to the Court of Sessions to face trial in accordance with law. Being aggrieved by the above order of the learned Additional Sessions Judge the accused-petitioners moved this Court and obtained the present Rule.

It appears from the order of discharge dated 12-8-1965 that the learned Magistrate in his lengthy judgment has not only weighed the evidence in the scale but has also travelled beyond his jurisdiction in rejecting the evidence of the witnesses either for this or that reason lie has practically assumed the function of the trial Court instead of limiting himself to the task of finding out a prima facie case. It has been held in numerous decisions that the function of a Magistrate in an enquiry under Chapter XVIII of the Criminal Procedure Code is very limited and he is required only to ascertain if there are good materials to make out a prima facie case against the accused persons. Law on the subject is settled and reference in this connection may be made to the cases reported in P L D' 1962 S C 480; P L D 1959 S C (Pak.) 347; P L D 1962 Dacca 221; P L D 1967 Dacca 756 and 21 D L R 102. It is unfortunate that some time the Enquiring Magistrates instead of correctly following the law laid down by the superior Courts, travel beyond their jurisdiction.

There are admittedly five eye-witnesses in this case. The gun shot injury on the person of the victim has been proved by the doctor. In the face of evidence on record it cannot be said that there were no prima facie materials in the instant case. But the learned Magistrate discarded the evidence of the P. Ws. mainly due to some inconsistencies in their evidence, which was never within his jurisdiction have looked into the evidence and in my opinion, the learned Magistrate has definitely made an. access and trespassed into the province of the Sessions Court and practically usurped the function of the Court of Sessions.

The learned Additional Sessions Judge set aside the impugned order with an observation which runs as follows :-

"It is quite apparent from the discussion of the evidence of the P. Ws. examined by the prosecution in this case that the learned Magistrate has usurped the function of a trial Court. He has weighed the probabilities of the case which can only be done by the trial Court. He had been holding preliminary inquiry and he was to commit the accused persons if he was satisfied that there was a prima facie case against them. He has discussed -the evidence of the doctor and had observed that the evidence of doctor and the evidence of P. W. 1 the complainant, are contradictory, but the fact remains that the doctor who examined the petitioner had found gun shot injury on the person of the petitioner. He has discussed the evidence at length as to the place of occurrence and had found that there were some discrepancies as to the P. W. amongst the evidence of the P. Ws. This function was not assigned to him by law. I have gone through the evidence and I find that there were several eye-witnesses to the occurrence and the evidence of possession in favour of the complainant was overwhelming."

The findings and observations made by the learned Judge, as quoted above, are quite reasonable and it seems that the learned Judge has set aside the order of the learned Magistrate with good reasons: As indicated above, a prima facie case under section 307/324/323/379, P. P. C. having been made out, in my opinion, the accused persons have been rightly directed to be committed to the Court of Sessions for trial and I find no reason to interfere with the order of the learned Additional Sessions Judge.

The Rule is accordingly discharged.

Rule discharged.

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