T.N.R. Tirumalpad, J.C.
1. This Criminal Revision is directed against the order of the Sessions Judge in Criminal Motion No. 39 of 1961, by which he set aside the order of discharge of the 11 petitioners by the First Class Magistrate, Sri K.P. Dutta, in G. R. Case No. 1054 of 1959 and directed that they should be committed to the Court of Session to take their trial under Sections 395/342/120B.
2. It is unnecessary to deal with the facts at great length. One Sagarmaall Bhatia, who was examined as P. W. 2, was the local Agent of Messrs. Duff Mills Agencies of Calcutta, (hereinafter to be referred to as Duff and Co.) a firm of jute merchants, with their local office at Badarghat. Petitioner No. 3, Ramesh Chandra Debnath, who is also a jute merchant, and used to supply jute to various other merchants had entered into an agreement with the said Sagarmall Bhatia in November, 1959 to supply 3,000 maunds of jute to Duff and Co. within that month and he had received several thousands of rupees as advance and had also supplied lot of jute before 24-11-59 The petitioner No. 1 Sumermall Jain, is another respectable jute merchant having his office and Godown in Badarghat. The prosecution case was that on 24-11-59, a conspiracy was entered into between Ramesh Chandra Debnath, Sumermall Jain, Jetmal Chhajar Petitioner No. 2, Rai Chand Baid, petitioner No. 5, and the approver Ram Ballav (P. W. 1) for the purpose of appropriating Duff and Co's moneys and with this object the said five persons met in the Godown of Sumermall Jain at Badarghat on 25-11-59 at 11-00 a.m. and it was decided at the meeting that Ramesh Debnath should call at the Office of Duff and Co. and represent that about 500 to 600 maunds of jute were available at Mohanpur and that unless advance of money was made to Ramesh Debnath this stock might not be available thereafter. The further case was that Ramesh Debnath came back later and reported that Duff and Co.'s men would themselves go to Mohanpur with him and purchase the stock on payment of money. Then, he was instructed that after the purchase he should arrange to send the purchased jute to the Godown of Sumermall at Badarghat. After this, he went to Mohanpur with Duff and Co.'s men namely, P. Ws. 3, 6 and 10 in two lorries -- TRL Nos. 365 and 314 in the afternoon of 25-11-59 and about 200 and odd maunds of jute were purchased by him on behalf of Duff and Co. from 6 or 7 merchants at Mohanpur including P. W. 8 and P. W. 11, for which money was paid by Duff and Co.'s men into Ramesh's hands. Then the two lorries were loaded with the purchased jute and the challans for the jute were handed over to the two drivers of the lorries, namely, petitioners 8 and 9 by Duff and Co.'s men P. Ws. 6 and 10 and the two lorries started with the jute and P. W. 3, the Durwan of Dufi and Co. also accompanied the jute in one of the lorries and the two lorries arrived at Arundhutinagar drop gate at about 11-00 p.m. Sagarmall Bhatia and one Abhaya Chand Darsani (P. Ws. 2 and 5) met the lorries at the gate and at the request of P. W. 3, they also boarded the lorries. The two drivers, however, instead of taking the jute to the Office of Duff and Co. at Badarghat drove the two lorries inside the Godown of Sumermall Jain and there Sumermall Jain forcibly pulled down Sagarmall Bhatia (P. W. 2), from the lorry, while Rai Chand Baid and Jetmall Chhajar were said to have pulled down Abhya Chand Darsani (P. W. 5), and petitioners 6 and 11, namely, Narayan Choudhury and Sattar Sahani were said to have pulled down P. W. 3 and they were said to have been threatened with death by Sumermall and they were confined in a room till about 1-30 a.m. In the meantime, the two lorries were unloaded of the jute on the orders of Sumermall. Then P. Ws. 2, 3 and 5 were released at 1-30 a.m. They heard Sumermall asking the two drivers to drive the two lorries into the compound of Duff and Co. P. Ws. 2, 3 and 5, thereupon rushed to the Duff and Co.'s premises and prevented the gate from being opened. This is the case against petitioners 1, 3, 5, 6, 8, 9 and 11. As for the remaining petitioners, Chandanmal Sethia (petitioner 4), Pran Ballav Debnath (petitioner 7) and Bimal Dutta (petitioner 10), there was no specific case against them by the prosecution. Chandanmal Sethia, was stated to have been present in Sumermall's godown when P. Ws. 2, 3 and 5 were said to have been forcibly dragged down from the truck, Pran Ballav was said to have accompanied P. W. 1 in a jeep to Mohanpur in the night of 25-11-1959, where they were said to have met Ramesh Debnath and where the approver was said to have asked Ramesh that he should manage to take away the duplicate challan from Duff and Co.'s men at Mohanpur. Pran Ballav has not had anything to do with this and it is not part of the charge and further the taking away of the duplicate challan is not part of the charge against any of the petitioners. As for petitioner 10 Bimal Dutta, none of the witnesses appear to have spoken about his part in any of the offences.
3. This is in short what the prosecution attempted to prove through 18 witnesses examined in the committal proceedings. The learned Committing Magistrate appeared to have committed the mistake of dealing with the case as if he was trying the petitioners himself for the offences under Sections 395/342 /120B, I.P.C. His order shows that he wrote out an elaborate judgment weighing the evidence and dealing with the credibility of the witnesses examined before him and he totally disbelieved the evidence of the approver (P. W. I.) and the 3 persons P. Ws. 2, 3 and 5 who spoke about their wrongful confinement. He also disbelieved that P. W. 3, the durwan was in the truck at Arundhutinagar drop-gate or that P. Ws. 2 and 5 got into the truck at that place or that the 3 of them were wrongfully confined in Sumer mall's Godown. He further disbelieved that the jute was purchased by Ramesh Debnath from the dealers in Mohanpur with the money of Duff and Co. or that the said jute was loaded in the trucks to be sent to Duff and Co. at Badarghat. Thus, he disbelieved the case of dacoity and wrongful confinement and also the story pf conspiracy which was mainly spoken to by the approver (P. W. 1) and said that P. W. 1's evidence without corroboration from disinterested witnesses was absolutely unreliable. On the other hand, he said that the case of the defence was a consistent one throughout, namely, that Ramesh had purchased the jute at Mohanpur and despatched it in the two lorries to the Godown of Sumermall at Badarghat and that the false case was set up mainly against Sumermall on account of party faction among the local jute merchants on one side headed by Sumermall and on the other side by Hiralal Jain who was closely related to the complainant Sagarmal Bhatia. The scope of the enquiry before a Committing Magistrate appears to have been brought to the notice of this Magistrate and the case law on the subject also was cited before him. But the Magistrate stated that the standard which he would follow in the present case was that the case, would be sent up for trial to the Sessions Court if there was any possibility of conviction and that since there was no possibility of conviction of the accused persons on the evidence as well as the documents before him, he was discharging them.
4. The learned Sessions Judge, who dealt with the case set aside the order of discharge and stated that the Magistrate dealt with the case as if the accused persons were standing their trial before him and had weighed the evidence as if he had to see that the accused persons had committed the offence and thereby he had taken over the function of the Sessions Court which was wrong. He then dealt with the evidence and the documents himself in paragraphs 9 to 13 of his order and he was satisfied that there was prima facie evidence to show that the petitioners Sumermal, Jetmal, Ramesh Chandra Debnath, Rai Chand Baid and the approver Ram Ballav Maudhana had entered into a conspiracy to appropriate the money and that in pursuance of that conspiracy, the petitioners Gopal Chandra Das and Upendra Debnath took the two trucks containing the jute of Duff and Co. inside the godown of Sumermall and that the petitioners Sumermall, Jetmal, Ramesh Chandra Debnath and Chandanmal Sethia, illegally detained P. Ws. 2, 3 and 5 and that all the 11 petitioners had committeed dacoity by taking away the jute of Duff and Co. and he therefore directed that all the petitioners should be committed to the Session to take their trial under Sections 395/342/120B, I.P.C. Against that order the petitioners have come up in revision.
5. This was a case instituted on Police Report, Sagarmall Bhatia (P. W. 2) filed the F.I.R. before the police at 5-00 a.m. on 26-11-59. In the said F.I.R. only petitioners 1, 2 8 and 9 Sumermal, Jetmal and the 2 drivers along with Ram Ballav, the approver (P. W. 1) were mentioned as accused persons and there was no mention of any conspiracy, but only of theft of the jute and wrongful confinement and unlawful assembly under Sections 379/342/143 I.P.C. It was in the course of the Police investigation that the other petitioners were also implicated mainly after the examination of P. W. 1 by the Police on 8-4-60. Subsequently after the charge sheet was filed in July, 1960, P. W. 1 filed a petition Ext. D-4 on 10-10-60 that he was present at the place of occurrence when the event took place and was prepared to state before the Court all that he knew and that he may be pardoned and appointed as State witness. On this, the Magistrate gave him a conditional pardon and adjourned the case for the examination of this man as approver to 14-10-60. On 14-10-60, an objection was filed for the petitioners stating that no conditional pardon can be given to him as it was against the provisions of Section 337 Cr.P.C. and that his prayer to be treated as an approver should not be allowed and his statements would be inadmissible in evidence. But this objection was overruled by the Magistrate as it was not taken at the first opportunity before the conditional pardon was given and as the date of examination of the approver was fixed in consultation with both sides.
6. In a case instituted on Police Report, the Magistrate had to follow the procedure specified in Section 207-A, Cr. P. C for committal. There is no doubt that the Magistrate who dealt with this case did not, as stated by the Sessions Judge, understand the scope of the enquiry under Chapter XVIII Section 207-A, Cri.P.C. We are concerned mainly with Sub-Sections 4, 6 and 7 of Section 207-A. It is clear from Sub-Section(4) (two times) that the prosecution is bound to produce the witnesses to the actual commission of the offence alleged and that it is only when the Magistrate finds it necessary in the interests of justice to take the evidence of any or more of the other witnesses for the prosecution, that he may take such evidence. Thus, the enquiry under Section 207-A is not intended to be a full-dress trial of the case. After the evidence is adduced under Sub-Section(4) Sub-section (6) provides that the Magistrate is to consider the documents referred to in Section 173, Cri.P.C. and if necessary, examine the accused and hear both parties and then if he is of opinion that such evidence and documents disclose no grounds for committing the accused for trial, record his reasons and discharge him. Sub-Section(7) says that if the Magistrate is of opinion that the accused should be committed for trial he shall frame a charge declaring with what offence the accused is charged. It is clear from this that it is not a part of the Magistrate's duty in such Committal Proceedings to weigh the evidence adduced before him and to consider the documents to see if on the evidence and the documents the accused can be convicted. He has only to see if the evidence and documents disclose material for committing or whether they disclose no grounds for committing. In other words he would commit if a prima faice case has been made out from the evidence and documents.
7. This matter has now been set at rest by the Supreme Court decision, Bipat Gope v. State of Bihar AIR 1062 SC 1195, in which it has been held that Section 207-A(6), Cri.P.C. can only mean that if there is a prima facie case triable by the Court of Session, the Magistrate must commit the accused to the Court of Session and that the Section does not invest the Magistrate with the jurisdiction to decide the case as if the sessions trial was before him. In the said decision reference has been made to an earlier SC decision Ramgopal Ganpatrai Ruia v. State of. Bombay, : 1958CriLJ244 . In that case, Section 209 and Section 210, Cri.P.C. were dealt with as it was a case, arising out of a private complaint. In Sections 209 and 210, it is provided that after the enquiry, if the Magistrate finds that there are no sufficient grounds for committing the accused person for trial, he shall record his reasons and discharge him and that if on the other hand, the Magistrate was satisfied that there are sufficient grounds for committing the accused for trial, he shall frame a charge declaring with what offence the accused is charged. Thus, the word 'sufficient' is added in Sections 209 and 210, which we find absent in Section 2O7-A(6). In dealing with Sections 209 and 210, the Supreme Court held that this meant that the Magistrate has to be satisfied that a prima facie case is made out against the accused by the evidence of witnesses entitled to a reasonable degree of credit and unless he was so satisfied, he was not to commit. An argument was advanced in the later Supreme Court case that the said observations in the earlier case meant that the Magistrate had to determine whether there was credible evidence or not. In dealing with that argument, the Supreme Court stated in the later ruling as follows:
The cited case interpreted Section 209 of the Code of Criminal Procedure, which, after amendment of the Code by Act 26 of 1955, deals with proceedings instituted otherwise than on a police report, and under which the Magistrate can discharge an accused if he finds that there are not sufficient grounds for committing the accused person for trial. The words of the two sections are not the same, and it is possible to say that the force of the two sections is also not the same, and that Section 209 gives a power to enter upon the merits of a case in a manner which Section 207-A, does not warrant. Whether the change of the language is deliberate or due to the fact that different draftsmen drafted the two Sections, the test for discharging the accused must, in a large way be the same under both the Sections and it is hardly necessary to decide the full ambit of Section 207-A, and contrast it with that of Section 209. If there is any indication in the language it is altogether on the side that the Magistrate must find a stronger case for discharging an accused under Section 207-A than under Section 209. But, whatever the meaning of the two expressions neither of them invests the Magistrate with the jurisdiction to decide the case, as if the Sessions trial was before him. To this extent, Mr. Sarjoo Prasad fairly concedes. Section 2O7-A(6) cannot be carried. Put in other words, the Section can only tenant that if there is a prima facie case triable by the Court of Session, the Magistrate must commit the accused to the Court of Session to stand his trial.
8. A comparison of Sections 207-A with Sections 208-219 would show, that in the case of proceedings instituted on police report where the accused have been charge sheeted after a preliminary investigation by the police on their being satisfied that there is a prima facie case for being placed before Court, the Magistrate should normally commit the accused for trial before the Sessions, if there was evidence oral and documentary in support of the offence without going minutely into the credibility of the witnesses which he should normally leave to be done by the Sessions Court. But in the case of proceedings instituted on private complaint he must be satisfied that there were sufficient grounds to commit the accused. For that he has to take, under Section 208, Cri. P. C., all the evidence produced before him by the complainant or by the accused or as the Magistrate may call for. Even after framing a charge, the Magistrate is permitted under Section 212, Cri.P.C. to examine defence witnesses to see if there are not sufficient grounds for committing. These are unlike the provision in Section 207-A. The reason for such difference is that in the case of proceedings on police report, there has already been a sifting of the evidence in the course of police investigation before a charge-sheet is filed and hence in the committal proceedings, all that the Magistrate has to see is whether there was a prima facie case to send the accused to the Sessions Court to take their trial, whereas in proceedings starred on private complaint, the Magistrate is collecting the evidence for the first time and hence his duty is a little more onerous and the Magistrate must find that there are sufficient grounds either for committing or for not committing. Thus in our present case which is under Section 207-A, the learned magistrate was. wrong in dealing with the case as if he was himself trying it and in stating that there was no sufficient evidence to convict the accused parsons of the offences and hence he will not commit them for trial but would discharge them.
9. But one point which was strongly urged for the petitioners before me was that P. W. 1 Ram Ballav was really not an approver and that even the petition filed by him to be treated as an approver mentioned that he was totally innocent that the magistrate was wrong to grant him a conditional pardon and to take his evidence as an approver and that therefore the entire evidence of P. W. 1 should be treated as inadmissible in evidence and the case against the petitioners must be dealt with only on the evidence of P. Ws. 2-18 and not of P. W. 1, the so-called approver. I am afraid, I cannot accept this argument. Under Section 337, Cri.P.C. a magistrate of the first class may tender a pardon to any person
supposed to have been directly or indirectly concerned in or privy to the offence.
Here P. W. 1 was one of the charge-sheeted accused and he was said to have taken part in the conspiracy and in the wrongful confinement and in the dacoity. It is not necessary that P. W. 1 should admit his complicity in the offences in order that he should be treated as an approver. No doubt the Section has the heading 'tender of pardon to accomplice'. But this heading is to some extent misleading as on a reading of the main section, it is found that the Section is intended to give pardon to any person 'supposed to have been directly or indirectly concerned in or privy to the offence'. Then again, though P. W. 1 stated in his petition that he was innocent, he has in his evidence given a detailed version of the part played by him and some of the other petitioners in the conspiracy, the wrongful confinement and the dacoity. As to how far his evidence should be accepted or not is a matter which is for the Sessions Court to decide, But it is clear from a perusal of his evidence that he has spoken about the complicity of some of the petitioners in the conspiracy dacoity and wrongful confinement. Where the magistrate erred was in deciding for himself that the evidence of P. W. 1 was thoroughly unreliable and in rejecting that evidence himself even at the stage of the committal proceedings. That is a matter which he should have left to the Sessions Court. What the magistrate should have considered was whether there was a case for committing the petitioners to take their trial before the Sessions. For that he should have seen whether there was prima facie evidence against the petitioners which if believed in by a Court of session would end in the conviction of the accused. Of course, as pointed out in : 1958CriLJ244 the circumstances in each case will be different and the magistrate has to decide in each case whether there were grounds for committal. But in any case, he should not deal with the committal proceedings as if he was himself trying the accused and as if he can see for himself whether the evidence adduced before him would warrant the conviction of the accused and he should not discharge the accused persons if he thinks that there was not enough evidence to convict. The point is that there should be enough grounds to commit and not that there should be enough evidence to convict.
10. I shall not deal in detail with the evidence in the case to see whether there was prima facie evidence before the magistrate to commit the petitioners. Any expression of opinion by this Court may have the effect of influencing the further trial in the case. The learned Sessions Judge has found that there was sufficient material for committing all the petitioners. But a serious mistake has been committed by the Sessions Judge. When there were 11 accused persons, it was his duty to see if there was a prima facie case against each of them separately, before he directed that their discharge by the magistrate should be set aside and that they should be committed for trial. I find that he has not bestowed any attention to the evidence against each of the petitioners separately.
11. As an example of this, I may state here that the Sessions Judge has directed the discharge order against Bimal Dutta and Sattar Sahani, petitioners 10 and 11 to be set aside, even though they were not even served in the Sessions Court with notice of the revision petition against them and even though the respondent had filed a petition in his Court on 6-10-1961 giving up the case against petitioners 10 and 11. Section 437, Cri.P.C. specifically provides that no order of committal can be passed by the Sessions Judge without giving an opportunity to the accused person to show cause why the commitment should not be made. Hence, it is clear that the order to commit petitioners 10 and 11 made by the Sessions Judge has to be set aside.
12. With regard to the remaining petitioners, I shall take their cases one by one.
13-16. (His Lordship then discussed the evidence relating to petitioners 1-4:)
17. As for petitioner No. 5 Sri Rai Chand Baid, his name does not find a place in the F.I.R. The case against him is mainly of having taken part in the conspiracy and this was spoken to only by P. W. 1. Even P. W. 1 mentions only that at the two meetings on 24-11-59 and 25-11-59 this Rai Chand Baid was present. P. W. 1 does not say what part this Rai Chand Baid played in the conspiracy. Mere presence in the meeting is not sufficient to frame a charge against this Rai Chand Baid under Section 120B, I.P.C. unless it is shown that he was guilty of some overt act. In the F.I.R. P. W. 2 has not mentioned the name of this petitioner as having been present in the godown of Sumermal or as having taken part in the wrongful confinement or in the dacoity. But in the course of the enquiry P. Ws. 1, 2, 3 and 5 have stated that petitioners Jetmal Chhajar and Rai Chand Baid dragged P. W. 5 out of the truck when it arrived at Sumermal's godown. Petitioner Jetmal's name is mentioned in the F.I.R. itself. But Rai Chand's was added only at the time of the committal proceedings after the approver had referred to this petitioner as one of the persons present at the so-called conspiracy meetings. There is no doubt that an attempt has been made to drag in this Rai Chand's name subsequently in order to implicate him. Admittedly this Rai Chand is a respectable jute merchant known to P. W. 2 and others and if he had really taken part in the occurrence in Sumermal's godown, there can be no doubt that his name would have found a place in the F.I.R. Thus no case has really been made out against this Rai Chand for committing him to take his trial. The order of committal of petitioner No. 5, made by the Sessions Judge is set aside and his discharge order will stand.
18-20. (His Lordship then discussed the evidence relating to Petitioners Nos. 6 to 9.
21. In the result, this revision petition is allowed in part and the order of the Sessions Judge committing for trial petitioners 4-11 is set aside and the order of discharge passed by the magistrate so far as they are concerned is restored. The order of the Sessions Judge committing petitioners 1-3 namely, Sumermal Jain, Jetmal Chhajar and Ramesh Chandra Debnath will stand and the revision petition is dismissed so far as those three petitioners are concerned.