Skip to content


Akberally Tayaballi Vs. Alimahomed Abdul Hussain - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Application for Revision No. 6 of 1939
Judge
Reported inAIR1939Bom372; (1939)41BOMLR749
AppellantAkberally Tayaballi
RespondentAlimahomed Abdul Hussain
DispositionApplication dismissed
Excerpt:
.....and 438(2) - committal proceedings-magistrate's refusal to commit-discharge of accused-additional sessions judge setting aside order of discharge and ordering re-trial in sessions court-duties of committal court and court of session-whether additional sessions fudge can exercise powers under section 437.;it is the duty of a magistrate, before whom committal proceedings are pending, to consider, on the evidence before him, whether a conviction is possible in the case. he must appreciate the evidence from that point of view only, and it is not within his province to consider the evidence merely from the point of view of the probability of a conviction resulting. it may be that a conviction is improbable. but if it is possible for a court to take such a view of the evidence as to be able..........any of the charges which are complained of by the complainant against them.on these grounds the learned magistrate directed that the accused should be discharged. the matter came in revision before the additional sessions judge, who considered the law on the point as laid down in certain cases, and also considered the appreciation of the evidence by the committal court and came to the conclusion that there was more to be said for the evidence led by the complainant than the learned magistrate seemed to think. the judgment of the additional sessions judge concludes as follows:in fact there is sufficient material on the record to justify an order of committal against all the four accused. it may be that in the learned magistrate's opinion the trial against the accused may not end in.....
Judgment:

Macklin, J.

1. This is an application in revision by four persons who have been ordered by the Additional Sessions Judge of Ahmedabad to be committed for trial to that Court on charges under Section 406, 420, 467, 114, 493, 497 and 498 of the Indian Penal Code. The case arose out of a private complaint by the opponent to this application. It was his allegation that accused No. 1 wanted to marry the opponent's wife and with that object devised a plot by which the opponent was induced to sign a blank paper upon a representation that it was to be used for an application for some form of service; but that after the signature was made and attested, the accused between them arranged for the document to be filled up in the form of a deed of divorce. The Magistrate before whom the proceedings came up by way of committal went into the evidence, and at the end of his judgment remarked as follows:

On the whole the evidence which is led by the complainant in the case to prove the alleged charges against the respective accused has appeared to me a subsequent concoction. It is on the whole found untrustworthy and incredible. It is not at all found such as would justify the committal of any of the accused to the Court of Session at Ahmedabad for taking their trial for any of the charges which are complained of by the complainant against them.

On these grounds the learned Magistrate directed that the accused should be discharged. The matter came in revision before the Additional Sessions Judge, who considered the law on the point as laid down in certain cases, and also considered the appreciation of the evidence by the committal Court and came to the conclusion that there was more to be said for the evidence led by the complainant than the learned Magistrate seemed to think. The judgment of the Additional Sessions Judge concludes as follows:

In fact there is sufficient material on the record to justify an order of committal against all the four accused. It may be that in the learned Magistrate's opinion the trial against the accused may not end in their conviction. But from the observations of the learned judges in the cases to which I have already referred, it is clear that the learned Magistrate's function was not to see whether a conviction would result or not.

2. Upon these grounds the learned Additional Sessions Judge set aside the order of discharge and directed that the applicants be committed for trial.

3. The first point urged by the accused before us is that the Additional Sessions Judge had no power to pass any such order, since the Criminal Procedure Code does not provide for any such order being passed by an Additional or Assistant Sessions Judge as distinct from the Sessions Judge himself. But the argument overlooks Section 438(2) of the Criminal Procedure Code, which provides that an Additional Sessions Judge shall have and may exercise all the powers of a Sessions Judge under 'this chapter,' and 'this chapter' provides by Section 437 that the Sessions Judge may direct the committal of a case triable exclusively by the Court of Session. The case of In re The Petition of Musa Asmal I.L.R. (1884) 9 Bom. 164 to which reference was made in support of this point, was decided before Sub-section (2) to Section 438 was enacted.

4. There are several decisions of this Court relating to the powers of a Magistrate before whom committal proceedings are pending and to the powers of the Sessions Court to revise the Magistrate's order declining to commit and discharging the accused. But I need not go further than the case of Ramachandra Babaji v. Emperor I.L.R. (1934) 59 Bom. 125 which was decided by a full bench. It was there decided beyond all possibility of doubt that in order to satisfy himself whether he should commit the accused for trial by a Sessions Court the Magistrate is entitled to go into the evidence. As the learned Chief Justice said (p. 22):

He has got to satisfy himself that there are sufficient grounds for committing the accused person for trial, and to do that he must consider the evidence, both its nature and credibility.

5. Later on he says (p. 22):

If the Magistrate comes to the conclusion that there is evidence to be weighed, [which means evidence that is worth weighing], he ought to commit the accused for trial and he ought not to discharge the accused merely because he thinks that if he were to try the case himself he would not be prepared to convict the accused on the evidence before him. But if he comes to the conclusion that the evidence for the prosecution is such that no tribunal, whether a Judge or jury, could be expected to convict the accused, then he ought to discharge him.

6. That clearly means that the Magistrate's duty is to consider whether a conviction is possible in the case, and in order to come to that conclusion he is entitled to appreciate the evidence. But he must appreciate the evidence from that point of view only, and it is not within his province to consider the evidence merely from the point of view of the probability of a conviction resulting. It may be that a conviction is improbable. But if it is possible for a Court to take such a view of the evidence as to be able to found a conviction upon it, then it is the duty of the Magistrate to commit the accused for trial. I do not see that there is any other way of interpreting this judgment, and with respect I do not think that there is anything incorrect in the statement of law which it lays down.

7. Now the learned Magistrate in this case, though he has appreciated the evidence and has come to the conclusion that it is, in his own words, 'untrustworthy and incredible,' has not in so many words stated that no Court could convict upon it. But we are prepared, after reading his judgment, to assume for the sake of argument that that was his intention. It is possible that if he had clearly stated his view that no Court could convict upon such evidence and upon that ground had refused to commit the accused, the learned Additional Sessions Judge might have had some hesitation in disturbing his order. Unfortunately he has not expressed himself as clearly as that, and the question is whether in these circumstances the learned Additional Sessions Judge was justified in disturbing the order of discharge. The decision of the full bench to which I have already referred not only deals with the duties of the Magistrate in such cases, but it lays down the principles also which should determine the Sessions Court in dealing with an order of the Magistrate discharging the accused and refusing to commit. These principles are summed up at the end in the judgment of Mr. Justice Rangneker, and in the body of the judgment of the learned Chief Justice at p. 23 the following observations are made:

Under Section 437, ...all that the Sessions Judge has to do is to come to the conclusion that the order for discharge was improper. He may, as it seems to me, reach that conclusion not only on the grounds indicated in the judgment of Mr. Justice Broomfield in the case of Parasharam Bhika v. Emperor I.L.R. (1932) 57 Bom. 430 that is to say, that the order was perverse or manifestly unreasonable and inconsistent with an honest appreciation of the evidence in the case; but also on the ground that the Magistrate has, however, competently taken upon himself the discharge of a duty which under the Code is entrusted to the Sessions Court, that is to say, the duty of appreciation of evidence of doubtful credibility. On that ground, I think, the Sessions Judge clearly can set aside an order of discharge, but I am prepared to go further and to hold that in a proper case he may do so on the ground that he disagrees with the appreciation of evidence by the Magistrate.

Now the duty of a committal Court is to see whether a conviction is possible; and if a conviction is possible, then it ought to commit; and if it refuses to commit, the grounds of the refusal should be (stated very generally) that no conviction is possible. The duty of the Sessions 'Court (stated very broadly upon the principles laid down by the full bench) is to appreciate the evidence from the point of view of the correctness of the Magistrate's order of discharge, in other words, in order to see whether the basis of the Magistrate's order of discharge (namely the impossibility of any conviction resulting) is correct or not. I have quoted the concluding words of the judgment of the learned Additional Sessions Judge in this case. The view that he takes of the learned Magistrate's opinion is that the learned Magistrate thought that the trial against the accused 'may not' end in their conviction; and the learned Judge goes on to say that the learned Magistrate's function was not to see whether a conviction 'would' result or not. Here again the remarks of the learned Judge, as in the case of the Magistrate also, are not as clear as they might have been; but I am prepared to read into those remarks the view that in the opinion of the Magistrate the trial against the accused 'might' end in an acquittal, whereas the true test should be whether it was or was not impassible for the committal to end in a conviction. In his remarks upon the authorities the learned Additional Sessions Judge is right when he says that the Magistrate's function was not to see whether a conviction 'would' result or not, since upon those authorities, as I have already stated, the Magistrate's real function is to see whether a conviction could result or not.

8. We have gone through the judgment and we have come to the conclusion that the view taken by the Sessions Court is really that a conviction in this case is not impossible. Whether the learned Judge is right in that view or not we do not think it necessary to consider at this stage. We should interfere if it were possible for us to assume the evidence to be true and yet to hold that no conviction could follow. But that is not the case here, and we do not think that there is any authority which would justify us in once more appreciating the evidence and holding that no Court could possibly convict when one Court at least has given1 an indication that on the evidence a conviction is possible. We must therefore decline to interfere partly upon that ground and partly upon the ground (which has been emphasized by the full bench in Ramchandra Gore's case) that the Sessions Court should be very slow to interfere in revision to set aside an order of discharge, a principle which a fortiori would apply to the High Court in what I may call a second revision.

9. I wish to make it clear that we are not in any way criticizing the learned Magistrate in this case. He has taken the view (as we understand his judgment) that no conviction is possible, and upon appreciating the evidence he is entitled to reach that conclusion; and having reached that conclusion he was in our judgment perfectly correct in refuging to commit the case for trial.

10. The application is dismissed and the rule is discharged.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //