R.S. Bindra, J.C.
1. The prayer made in this criminal Revision Petition filed Under Section 439, Criminal P.C., is that the Order D/. 29-8. 1968 by which the committing Magistrate discharged the respondents of the offence Under Section 302, IPC, and the Order D/- G-ll-1968 of the Sessions Judge affirming the correctness of that discharge order, be quashed.
2. After hearing the learned Counsel for the parties I have cone to the conclusion that the prayer made by the petitioner is justified in law, According to Sub-section (6) of Section 207-A, Criminal P. C. the Magistrate can discharge the accused if in his opinion the evidence and documents on the record do not disclose grounds for committing the accused persons for trial. In other words, the Magistrate is required by law to find out if there are sufficient grounds to 'commit' the accused to the Sessions Court and not whether there is sufficient evidence to 'convict' him of the offence charged. It is settled that the duty of the Magistrate ia to determine whether a conviction is probable and not that it is possible, and that if two views are possible on the available evidence it is the duty of the Magistrate to commit the accused for trial rather discharge him. The committing Magistrate, it must be emphasized, cannot weigh the evidence and the probabilities in the case, that being the privilege only of the Sessions Judge trying the accused. The committing Magistrate is only concerned to find out whether there is evidence and material before the Court which, if believed, would establish a prima facie case against the accused. He would be acting the excess of his jurisdiction if he were, instead, to weigh the evidence critically and find out inconsistencies and improbabilities to decide the guilt or innocence of the accused. Such a procedure would amount to a trial of the case and that would clearly be beyond the jurisdiction of the Committing Magistrate.
3. Shri Budhachandra Singh, appearing for the respondents, agrees that the principles set out above are unexceptionable since they have received the imprimatur of the Supreme Court, vide Bipat Gope v. State of Bihar : AIR1962SC1195 and Mohinder Singh v. State of Punjab : 1965CriLJ112 . If so, then I have no misgivings that the Courts below have gone wrong, one in ordering the disaharge of the respondents and the other in confirming the correctness of that conclusion. We have the statements of Bokul Singh and the latter's son Ramo Singh, who are respectively the father and a brother of the deceased Kumaro Singh of this case, that when they rushed to the place of occurrence they saw four respondents standing close to Kumaro Singh who lay injured on the ground tied with topes, that the accused were then armed with sticks, and that when Bokul Singh made an attempt to unfasten his injured son and to remove him from that place the accused Komol Singh assaulted them both, Ramo Singh deposed further that earlier he had seen the four accused making joint assault on Kumaro Singh. These statements constitute direct evidence implicating the accused in the murder of Kumaro Singh. It was not the function of the committing Magistrate, aa stated in the preceding paragraph, to adjudge the veracity or otherwise of this evidence. That, I may repeat, is the function only of the trial Court. Therefore, I have no alternative but to quash the orders of the Sessions Judge and the committing Magistrate and to remand the case to the latter with the direction to proceed therewith in accordance with the pro. visions of law and in the light of the observations made above.