1. In this case, there has been a committal of the three applicants for trial by the Sessions Judge of Broach on a charge under Section 302 of the Indian Penal Code, In his reasons for commitment the Magistrate has expressed a very strong opinion as to the evidence of certain eye-witnesses not being trustworthy, anil says he thinks that they knew or saw nothing of the incidents think deposed to. On the other hand, in view of certain authorities, he held that the Sessions Court and the assessors might believe the eye-witnesses and convict the accused and that it was incumbent upon him to be prudent and circumspect; and accordingly he committed the accused for trial.
2. Mr. Thakor for the applicants has urged that this view is entirely opposed to decisions of this Court such as In re Bai Parvati I.L.R. (1910) Bom. 163: 12 Bom. L.R. 923 and Emperor v. Bai Mahataxmi : AIR1915Bom195 and that there is an error of law on the part of the Magistrate, which justifies the commitment being quashed under Section 215 of the Criminal Procedure Code, We have considered these arguments; but, in our opinion, a distinction must be made between a case where the Magistrate has discharged an accused under Section 209 of the Criminal Procedure Code, refusing to commit him, and one, where, in fact, he has directed a commitment, although he disbelieves the main prosecution evidence. In the former case, undoubtedly, the rulings that Mr. Thakor has quoted would be very strong authorities in favour of our not interfering with the order of discharge. Bat, in the present case, the Magistrate has been satisfied that there are sufficient reasons for committing the accused in spite of his disbelief of the prosecution evidence.
3. The Magistrate may be right or wrong in supposing that it was a case which ho ought to have committed; but he has exercised his discretion, and 1 think the case stands on a very different footing to what it would be if he had discharged the accused and we had been asked to interfere and direct a committal. There certainly are authorities which can be cited in support of the view that the credibility of the prosecution witnesses in a charge of an offence which is beyond the jurisdiction of a Magistrate is a question that can, at any rate, be properly placed before the higher tribunal, which has jurisdiction; and we cannot say that, in law, the Magistrate has erred in saying that he will not act merely upon his own appreciation of the evidence but will leave the case to the appreciation of a higher tribunal, I know of no authority where a commitment has been quashed upon this particular ground, nor has Mr. Thakor cited any. On the other hand, it has been held in Mahomed Moidin v. King-Emperor I.L.R. (1923) Ran. 526 that on an application to quash a commitment made by the investigating Magistrate in the exercise of his discretion under Section 213 of the Criminal Procedure Code, the High Court has no- concern with the question of the credibility of the evidence, when there is, in fact, some evidence on the committal record which would justify the Sessions Judge not leaving the question of guilt or innocence to the jury. In that case also the Magistrate, as shown by the report at page 532, instead of discharging the accused, exercised the discretion vested in him to commit the accused for trial before the Sessions Court, Again, as in this case, in doing so, he made certain remarks as to the evidence, and expressed the opinion that the question of the credibility of the evidence was a question for the decision of the Sessions Court. The case, therefore, is practically on all fours with the present case. The same position often arises in England. A Magistrate may take upon himself the responsibility of saying that the evidence adduced by the prosecution would never be believed by a jury, and therefore discharge the accused. If, however, he says that, although he has some doubts about the evidence, he thinks it better that the case should go before a jury, I do not think that it could possibly be said that in doing this he committed an error of law, which would justify the quashing of the commitment.
4. In the present case, for the reasons I have given, we think that the application should not be allowed. But even supposing there has been an error of law, in exercise of the discretion conferred upon us by Section 215 of the Criminal Procedure Code, we would not be disposed to interfere with the commitment that the Magistrate has made. The application is, therefore, rejected.
5. I agree.