S.K. Dutta, J.
1. These two revision petitions Nos. 89 of 1961 and 93 of 1961 are analogous and they are jointly heard and a single judgment covers both of them. One Prativa Mukherjee filed a complaint in the Court of the Additional District Magistrate, Shillong stating that she left her minor daughter Sunanda Mukherjee and her minor son Topan Mukherjee In the house of one S. K. Mukherjee at Shillong under his 'guardianship and charitable help to enable the children to prosecute their studies. The accused Uma Chatterjee used to live in that house and serve S. K. Mukherjee who was a widower. S. K. Mukherjee died sometime ago and the above children continued to live with accused Uma Chatterjee, The complainant further alleged that after the death of S. K. Mukherjee, Uma Chatterjee started leading an im-imoral life and ultimately the accused Ranadhir Bisarad came and lived with her in the same house, Gradually the two 'accused allured the minor girl Sunanda into immoral lite and accused No. 2 Ranadhir committed rape on her on several occasions and accused No. 1 Uma Chatterjee abetted the offence. On the above facts warrant was issued against the accused persons and an enquiry was made. The girl was medically examined on 23-6-1960 and evidence was recorded by the Magistrate but the accused were discharged.
Then a revision petition was filed in the Court of the Sessions Judge, Lower Assam Districts by the complainant and the learned Additional Sessions Judge held that there was sufficient evidence and material for charging the accused for the purpose of committing them for trial and accordingly be ordered their committal to the Sessions Court. It is against this order of commitment that accused Uma Chatterjee has filed petition No. 89 of 1961 and accused Rana-4nir has filed petition No. 93 of 1961.
2. Under Section1 208, Criminal procedure Code, in complaint case the magistrate is to hear the complainant , and- take all such evidence as may be produced by the prosecution or by the accused. The magistrate may discharge the accused Under Section 209 if he finds that there are not sufficient grounds for committing him. Section 210 authorises the magistrate to frame a charge if he is satisfied Jhat there are sufficient grounds for committing the accused for trial. Under Section 211, the accused has to give a list of his witnesses, if any, and Section 212 authorises the magistrate to summon and examine any of these witnesses. Then Under Section 213 the magistrate may either commit the accused for trial or cancel the charge and discharge the accused if he is satisfied that there are not sufficient grounds for committing him. Section 215 lays, down that a commitment once made Under Section 213 can he quashed by the High Court only and only on a point o law. Section 437 authorises the Sessions Judge or the District Magistrate to order a commitment if he considers that the accused has been improperly discharged.
3. In the present case the Magistrate discharged the.-accused Under Section 213 and the Additional Sessions Judgi ordered commitment Under Section 437.
4. Dr. Medhi, appearing on behalf of the1 complainant' opposite parties, argues that although the Sessions Judge 'ordered the magistrate Under Section 437 to commit the accused, the commitment could be made by the magistrate (only Under Section 213 and as such it can be quashed only Under Section 215 by the High Court on a point of law. We are, however, unable to accept this argument. It is clear from the language of Section 215 itself that the limitation imposed by the said Section does not in terms apply to a commitment made Under Section 437. A commitment Under Section 437 can be dealt with by the High Court under its revisional powers and a High Court in such a case cari consider the facts as well as questions of law involved. This view gets support from a series of decisions of various High Courts and in this connection reference may be made to Rash Behari Lai Mandal v. Emperor, 12 Cal WN 117, Pirthi Chand Lai v. Sampatia 7 Cal WN 327, In re, Damappa Palai A.I.R. 1914 Mad 424. Dr. Medhi has not been able to cite a single authority in support of his contention that even when a magistrate commits an accused under direction of the Sessions Judge, he acts Under Section 213. In the present case there can be no bar for this Court to exercise I its revisional jurisdiction and it can go even into questions I of fact to see if the order of the Additional Sessions Judge is correct and proper.
5. The words 'sufficient grounds' in Section 213 are lather ambiguous and this has led to difference of opinion amongst the High Courts as to whether a committing Court .should weigh the evidence and decide whether there is probability of the trial ending in conviction or whether it has only to see that there is a prima facie case which, if believed by the Court of Sessions, will end in conviction of the accused. The matter was considered by the Supreme 'Court in Ramgopal Ganapatrai v. State of Bombay : 1958CriLJ244 and it was observed by their Lordships that the conflicting observations made by the High Courts should be read in the light of the facts and circumstances disclosed in each individual case. The matter was again considered by the Supreme Court in Khushi Ram v. Hashim A.I.R. 1959 IS C 542, and it was observed there as follows:
The distinction must always be drawn between absence, of legal evidence and absence of reliable evidence. If K could be said with justification that there was no legal evidence at all in support of the prosecution case, it may lead to the inference that the commitment was bad in that it was not based on any legal evidence at all.
6. We may sum up the position by saying that what a committing magistrate has to see is not whether there 'is evidence on which a conviction is reasonably certain but whether there is legal evidence on which a conviction is .possible. In the case before us, there is evidence to show that defendant No. 2 Ranadhir Bisarad had sexual inter-leourse with the girl. The learned Magistrate relied on the jnedical evidence and came to the finding that the girl had sexual intercourse on the night of 22-6-1960. But he considered the age of the girl and came to a finding that it -was above sixteen. There is however legal evidence from which it is possible to infer that the age of the girl was below 16 at the time of the occurrence. The mother and the brother of the girl deposed that the girl was running sixteen years. According to the doctor her age was between IS to 16. In such circumstances, the magistrate should have left the question of age to be determined by the Sessions Court as there was a reasonable doubt if it fas not below 16. The commitment of defendant No. 2 Ranadhir Bisarad is therefore justified.
7. The allegation against defendant No. 1 Uma Chatterjee is that she abetted the rape. The only specific instance of rape was the alleged occurrence of 22-6-1960. There ts no evidence whatsoever to show that Uma Chatterjee had anything to do with this occurrence. Dr. Medhi submits that Uma Chatterjee abetted the offence by conspiracy with accused No. 2 Ranadhir. As stated above, the only case of rape about which there is evidence was the alleged occurrence of 22-6-1960. Although the girl alleged that Ranadhir committed rape on her a few times before this Occurrence, she did not say when such an offence was committed. There is no evidence to show that there was any (.design between the two accused for commission of the alleged offence on 22-6-1960. In such circumstances it cannot fee said that there is any legal evidence against defendant No. 1 Uma Chatterjee on which her conviction may be possible. In the result, therefore, the order of commitment passed against her is quashed.
8. Criminal Revision Petition No. 89 of 1961 filed for Uma Chatterjee is allowed and Criminal Revision Petition No. 93 of 1961 filed by Ranadhir Bisarad is dismissed.
G. Mehrotra, C.J.
9. I agree.