1. This application arises out of a complaint made by one Kanaiyalal against two persons, Bai Mahalaxmi and Shankarlal. He charged these two persons under Section 477 of the Indian Penal Code and alleged that a certain page containing two khatas of the accused in an account-book of his was torn and burnt by Bai Mahalaxmi in the presence of Shankarlal when he had gone with his account-book to demand money which was due by these persons to him.
2. The proceedings before the Magistrate were under Chapter XVIII of the Criminal Procedure Code, the offence charged being exclusively triable by a Court of Session. The Magistrate did not issue any process against Shankarlal, but examined him as a witness in the course of the inquiry before him. After recording the evidence which the complainant adduced, the learned Magistrate discharged the accused, Bai Mahalaxmi, on the ground that in his opinion the evidence was very interested and unreliable and that he did not at all believe it.
3. Against this order of discharge there was an application by way of revision to the Court of Session by the complainant. On this application the learned Sessions Judge has set aside the order of discharge and remanded the case to the Magistrate with instructions to commit. It is this order of the Sessions Judge that is now sought to be revised.
4. It is urged on behalf of the applicants, who were the persons originally charged by Kanaiyalal, that the learned Sessions Judge has erred in law in stating the powers of the Magistrate in dealing with a case under Chapter XVIII. The learned Sessions Judge says in his order that 'the Magistrate has strained his powers. In the first place he seems to have himself cross-examined the prosecution witnesses. In the second place it is no part of the duty of the Committing Magistrate to find on the truthfulness of witnesses. If the evidence of witnesses, if true, make out a prima facie case against the accused and if the witnesses are not patently false, he ought to commit.' And further on he says as follows :-'Yet the circumstances might be such-I do not say that they are or are not-that the trying Court ought to convict on the evidence of the complainant.' In the order which he has made there is no indication of his opinion as to the credibility of the witnesses examined on behalf of the complainant, nor is there any indication of any circumstances which, in the opinion of the learned Judge, might justify a conviction by the trying Court.
5. With this view of the powers of the Magistrate before whom an inquiry is held under Chapter XVIII, I am unable to agree. It has been pointed out in a number of cases of this Court, of which I need refer to only one-In re Bat Parvati I.L.R. (1910) 35 Bom. 163 : 12 Bom. L.R. 923-that if the evidence tendered for the prosecution is totally unworthy of credit, it is not only within the power of the Magistrate but it is his duty to discharge the accused under Section 209 of the Criminal Procedure Code. It seems to me that in this case the Magistrate was well within his powers in cross-examining the prosecution witnesses and in considering whether the witnesses examined on behalf of the prosecution were credible.
6. As regards the circumstances in the case outside the oral evidence, as I have already said, we have no indication in the order of the learned Sessions Judge nor have they been indicated to us in the course of the argument here on behalf of the complainant. We have heard the learned pleaders on the merits of the case, and I am unable to say on a consideration of those arguments that the Magistrate under the circumstances of this case was not justified in describing the evidence as being very interested and unreliable. On that view of the case I am clearly of opinion that the Magistrate was not only justified but bound to discharge the accused.
7. There is one other point with regard to the accused Shankarlal. So far as he is concerned, there was no inquiry whatever against him under Chapter XVIII. On the contrary, he was examined as a witness in the case by the Magistrate. The learned Sessions Judge, however, in setting aside the order of discharge and in issuing instructions to the Magistrate to commit, apparently made an order against this petitioner also. It is difficult to see how, so far as he is concerned, any order to commit him to the Court of Session could be made without a preliminary inquiry under Chapter XVIII of the Code. In his case, there is this additional reason for not upholding the order of the Sessions Judge.
8. On these grounds I make the rule absolute and set aside the order of the Sessions Judge.
9. I concur. The complainant Kanaiyalal's case briefly was that he had taken two khatas from the two accused, Bai Mahalaxmi and Shankarlal, and that some time afterwards on going to recover his money, they had been torn up by the accused, Bai Mahalaxmi, with the connivance of the accused, Shankarlal. Kanaiyalal had, therefore, to prove two things, one that he actually had taken khatas from the accused, and, secondly, that they had been torn up by the accused woman with the connivance of the other debtor.
10. With regard to the first point the direct evidence consisted solely of the statement of Kanaiyalal. He produced, it is true, an account book, but that was unpaged and unindexed and was not capable of being tested by reference to any other account books, such as the day-book commonly kept by moneylenders. It is true that the remnants of a torn page appear in this book, but they were only the remnants containing no writing whatever on them and could, without any difficulty, have been subsequently inserted in the book. It is true that he called the Manager Trikamlal of the firm from whom, it was alleged, he got the money to pay the two accused, but that Manager was not able to give any very definite evidence in corroboration of the loan. His statements in fact did not agree with those of the complainant and the books of the firm merely showed loans to the complainant without any reference to their having been taken for the purpose of payment to either of the accused. Two other witnesses were cited in the vain endeavour to support the alleged khatas, one named Keshavlal who alleged that he had been shown the khatas, and the other witness Chimanlal, who alleged that he had heard an admission made to the effect that there were such khatas. It is difficult, in my opinion, to hold that these were credible witnesses as to the existence of the khatas.
11. With regard to the other point, the tearing up of the khatas, the sole evidence was that of the complainant, Kanaiyalal, and that was to the effect that they were torn up by the accused woman, Bai Mahalaxmi. He introduced another witness Manilal who was either a client or debtor of his who said that the following day some admission was made as to the matter by accused Shankarlal. It is again, in my opinion, difficult to hold that these were credible witnesses of the somewhat improbable story of the tearing up of the khatas.
12. It seems to me, therefore, that prima facie it was rightly held that there were no credible witnesses of the alleged offence and that the two accused were rightly discharged by the Magistrate. Nor does it appear to me that the witnesses were actually considered to have been credible witnesses by the learned Sessions Judge. What he stated was that their truthfulness ought not to have been considered and that they should not have been cross-examined and if their truthfulness had not been considered and they had not been cross-examined, then it would have been impossible to say that they were patently false witnesses, that is to say, that their bare statements without further investigation ought to have been acted on, and that if these bare assertions were not patently false, then the accused ought to have been committed for trial by the Sessions Court. But this does not seem to me to be the law laid down in the decisions. What has been insisted on in them is that not only shall there be witnesses in support of the charge but that they shall be credible witnesses. And in departing from this position and stating that all that is required is that they shall not be patently false it appears to me that an error of law has been committed by the learned Sessions Judge. The legal position has been sufficiently indicated in the case of Emperor v. Rawji Hari : (1907)9BOMLR225 and in a recent case in In re Bai Parvati I.L.R. (1910) 35 Bom. 163. It appears to me, therefore, that for these reasons the order to commit the accused No. 1 Bai Mahalaxmi and the accused No. 2 Shankarlal, passed by the learned Sessions Judge cannot be supported by this Court.
13. There is also in the case of accused No. 2 Shankarlal this further serious objection that no inquiry at all has as yet been made into the case against him with a view to his committal to the Sessions. No process seems to have been ever issued against this accused. He would, therefore, appear not to have been liable to any immediate order of committal by the Sessions Court
14. I concur, therefore, that the order of the learned Sessions Judge in the case of both the accused must be set aside by this Court.