G. Mehrotra, C.J.
1. This is a revision against the order of the Magistrate by which he has discharged the accused under Section 209, Criminal Procedure Code, of the charge under Section 330, Indian Penal Code.
2. The case was started on a complaint. The complainant's case is that on the night of 21st/22nd November, 1959, he was separated from the other under-trial prisoners in the Thana lock-up and was assaulted by the Officer-in-charge Sri C.K. Thakuria with a thick rope and a glass insulator. His further case is that on the 23rd November, 1959, he was again assaulted by the Sub-Inspector of Police with a view to extract a confession from him. The Magistrate on enquiry came to the conclusion that there was no material to prove the incidents of the night of 21st/22nd November. 1959. He states that P.W. 3 Bholanath De by merely hearing the screams cannot say that it was the accused who assaulted the complainant and that he was assaulted with a view to extract confession. On that finding he has not framed charge so far as the incident of the night of 21st/22nd November is concerned. To that extent no objection can be taken to the order of the Magistrate.
Coming to the incident of the 23rd November, 1959, the complainant produced Baharudin Ahmed, his own brother-in-law, who stated that he went there to get the accused released on bail and he heard his screams and also the attempt on the part of the Sub-Inspector of Police to extract confession from him. Bhola De and another co-occused were also produced, who made a statement to that effect. The Magistrate's finding is that having regard to the circumstances, the evidence of Baharuddin cannot be believed, inasmuch as, that if the complainant screamed because of the assault on him, the witness could not hear that the Sub-Inspector wanted to extract confession from him. As regards the statement of Bhola De, he has rejected it on the ground that his statement was that the Sub-Inspector attempted to teach them about the confession; but there is nothing in writing to corroborate this statement. As regards the statement of the Jail Visitors and the doctor, they said that complaint was made to them that the complainant was tortured, and not that they were assaulted to make confession. In these circumstances, the Magistrate inferred that there was no prima facie case made out for commitment of the accused to the Court of Session for taking his trial under Section 330, Indian Penal Code. He further thought that there was a prima facie case made out for causing grievous hurt to the complainant, and thus he proceeded to try the accused under Section 325, Indian Penal Code.
3. A case under Section 330, Indian Penal Code, is exclusively triable by the Sessions Court. It is not for this Court to give any opinion on the merits of the case. The only question which is before me is whether it can be said that there was a prima facie case for commitment of the accused to the Court of Session.
4. Dr. Medhi has relied upon the case of Ramgopal Ganpatrai v. State of Bombay : 1958CriLJ244 , in support of his contention that there is a marked distinction between the language employed in Section 207A of the Code of Criminal Procedure and Section 209. He has particularly drawn my attention to the following observations made at pages 105 and 106 of the report.
The true principle appears to be that expressed in the English statute. The Magistrate ought to commit when the evidence is enough to put the party on his trial, and such a case obviously arises when credible witnesses make statements which, if believed, would sustain a conviction. The weighing of their testimony with regard to improbabilities and apparent discrepancies is more properly a function of the Court having jurisdiction to try the case.
5. His contention is that when the Magistrate has to form his opinion as to whether the case should or should not be committed after considering the evidence and statement of the accused, it necessarily follows that the Magistrate also can examine the credibility of the witnesses with regard to the statements made by them. Before the Magistrate can commit a person to the Sessions, he has to come to the conclusion that there is a prima facie case made, out. This is to be based on the evidence of credible witnesses. But this is different from saying that the Magistrate is to consider whether the evidence can be believed or not believed or their statements are improbable or discrepant. If the Court decides the matter on these considerations, it is a transgression and encroachment upon the jurisdiction of the trial Judge. As pointed out in this connection by their Lordships of the Supreme Court-generally the power to commit depends upon the finding that there is a prima facie case made out, but each case has to be examined on its own facts and merit. In the case of Bipat Gope v. State of Bihar : AIR1962SC1195 , it was observed as follows:
The words of the two Sections 207A and 209 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 207A 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.... Put it in other words, the section 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 to stand his trial. What those cases would be, which would satisfy the test, may not generally be stated here, because, in our opinion, this case is far from the borderline, where ?only difficulties are likely to be met.
6. There is thus no dispute with regard to the principle of law. Each case will have to be examined in the light of the evidence produced in that case and the circumstances of the case.
7. The Magistrate has held that in spite of the denial by the accused, there was prima facie proof of grievous hurt as the complainant's witnesses have deposed about the actual assault -by the accused. Having placed reliance on their testimony for an offence under Section 325, Indian Penal Code, it cannot be said that for the purpose of the charge under Section 330, Indian Penal Code, the witnesses were incredible and that their evidence may not be believed. The offence under Section 330 is also an aggravated form of the offence under Section 325, Indian Penal Code. The Magistrate was not right in holding that no prima facie case under Section 330, Indian Penal Code, has been made out. It will be for the Sessions Judge to find I whether any portion of the complainant's case should or should not be believed on the evidence before the Sessions Judge. The Magistrate in this case acted as a trial Judge.
8. I accordingly allow this revision and set aside the order of discharge and the case is sent back to the Magistrate to proceed according to law under Sections 211 and 213 of the Code of Criminal Procedure.