Venkata Ramaiya, J.
1. The petitioner who has been committed to the Court of Session for trial on a charge under Section 376, Penal Code, has applied for the commitment being quashed on he ground that there is no legally admissible evidence against him to justify. In accordance with the existing practice of this Court, the petition was posted before a Division Bench. As the Bench was of divided opinion whether the petition is to be allowed or dismissed it has been referred to the Full Bench.
2. The case against the petitioner is that he raped a girl of 7 years on the afternoon of 16th February 1949 in his house at Madhugiri. The Magistrate has in the order of commitment referred to the opinion of P.W.8, the lady doctor who examined the girl that she might have been raped, the evidence of P.W.5 that the girl identified the accused as the person who raped her after inducing her by holding out some eatables to go with him to his house, to Ex. P-2 the mahazar recording this and attested by P.Ws. 5, 6 and 7 and expressed that there is no reason to disbelieve the prosecution version and that the evidence may justify a conviction.
3. It is contended on behalf of the petitioner that this view of the evidence is erroneous and that the commitment is liable to be quashed for want of evidence to connect the accused with the offence. Objection is raised to the evidence of P.W.5 as being inadmissible by virtue of the bar placed by Section 162, Criminal P.C., on the statement made during investigation before the Police.
4. The learned Advocate-General argued that the question whether there is evidence or not to justify the commitment is one of fact which cannot be considered in revision and that this is not the stage at which objections to the reception of evidence are to be decided. Two cases viz. Ramadhin v. Emperor, A.I.R. (16) 1929 Nag. 36 : (29 Cr.L.J. 963) and Lala Lalung v. Emperor : AIR1939Cal176 , are cited in the order as showing that the evidence cited in the order as showing that the evidence concerning identification of the accused as the person who committed rape on the girl is admissible. Sri Krishnamurthy on behalf of the petitioner contends that a contrary view is taken in a large number of cases and, in particular referred to Surendra Dinda v. Emperor, I.L.R. (1945) 2 Cal. 513: (A.I.R. (36) 1949 Cal. 514: 48 Cr.L.J. 804), where a distinction between identification by one-self as mental process and when it is followed by a communication to another is sought to be made. It was open to the Magistrate to disallow the evidence or discard it while weighing the evidence for the purpose of making an order under Section 213, Criminal P.C., as he is required by that section to determine on a consideration of the evidence whether there is a prima facie case against the accused.
5. The point now for decision is not what the Magistrate could or might have done but whether there are grounds on which this Court can in revision interfere with the order passed by him. According to Section 215, a commitment once made under Section 213 by a competent Magistrate can be quashed by the High Court only and only on a point of law. As stated by Rankin C.J., in Girish Chandra v. Emperor : AIR1929Cal756 :
'Section 215 is a restrictive or negative section. It is intended to negative the existence in Sessions Courts of power to quash commitments and it is intended to restrict the High Court to cases in which it can be said that the commitment is bad in law. This last restriction is a restriction put upon all powers which the High Court might otherwise possess. I have no doubt at all that it is a restriction which attaches to the powers of the High Courts in revision.'
The petitioner must, in order to succeed, make out that what is urged for him is a point of law and a point of law on which the commitment can be quashed, as it is possible that there may be a point of law and yet the commitment may not be disturbed if materials other than those relating to it are available, to support the commitment, or the point is such as can be cured by Sections 532 and 537 of the Code. The expression 'point of law' is not defined in the Code but without difficulty it may be said to arise when there is a breach of a statutory condition or requirement. In Belli Gowder v. Emperor : AIR1934Mad691 , a commitment was quashed because evidence was recorded by the Magistrate in the absence of the accused contrary to Section 353, Criminal P.C. In 50 Mys. H.C.R. 364, this Court quashed a commitment as all the witnesses were not allowed to be examined by the prosecution as provided for in Section 347. Where no violation of the statute is alleged, and what is alleged is want of evidence against the accused the question whether it would be a point of law for quashing the commitment under Section 215 is not free from doubt. Woodroffe explains 'point of law' as being a point other than that of fact in his commentary on Criminal Procedure Code (1914 Edn.) For purposes of appeal, the Code makes a distinctive between matters of fact and matters of law and to avoid doubt about severity of sentence being a matter of law there is an explanation added to Section 418. Likewise it is provided in Section 232 that when the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved the High Court in the exercise of its powers of revision may quash a conviction. There is no similar provision in or explanation attached to Section 215 for want of evidence being deemed a point of law on a ground for quashing commitment. The provisions of the Code do not apparently help the petitioner on a plan construction to support his contention. With a view to show that the question whether evidence is admissible or inadmissible is a point of law, Sri Krishnamurthy relied upon Pakala Narayanaswami v. Emperor, and P. Kottayya v. Emperor, A.I.R. (34) 1947 P.C. 67 : (48 Cr.L.J. 533). Both these were appeals against convictions and the decision turned upon the application of Section 27, Evidence Act. It is hardly necessary to point out how limited is the jurisdiction of this Court in revision as compared with that in appeal and how different it is while dealing with a case of conviction from that of a commitment. Even in revision its powers under Section 215 are not the same as under Section 439 but less extensive and more circumscribed. Reference to considerations as to what is taken to be 'point of law' in second appeals under the Civil Procedure Code is not in my opinion for the same reason of much assistance for the application of Section 215.
6. No case of any Court in which a commitment is quashed on account of the evidence recorded by the Magistrate being held to be not admissible is brought to my notice. Reliance was placed on the observation of Rachpal Singh J., in Emperor v. Mithi Lal, A.I.R. (27) 1940 ALL. 285 : (4) Cr.L.J. 869), on a reference by the Sessions Judge for quashing a commitment:
'There may be cases in which there is no evidence to warrant a commitment; then there may be another class in which commitment is made on no legal evidence at all. In such cases action may be taken under Section 215, Criminal P.C.'
The decision in the case did not involve a consideration of the evidence being admissible or not as the learned Judge found that there was evidence sufficient to support the committal and dismissed the petition. But the following statement in the course of the order suggests that the evidence placed before the Magistrate is not to be taken as the sole criterion for dealing with the case against the accused:
'Another question which we have to take into consideration is this: that it often happens that there may be other evidence available while a case is being tried in the Court of Session. There may be witnesses whom the learned Sessions Judge might wish to summon under the provisions of Section 540, Criminal P.C.'
In Venkata Gopala Narasimha Rama Rao v. Venkata Ramayya : AIR1935Mad257 , the order of the Magistrate allowing statements made by the complainant in an income-tax return to be used as evidence was questioned. Rejecting the petition the Division Bench observed:
'we are influenced by the consideration that if the case is committed for trial it will rest upon the trial Court independently to decide upon the admissibility of this evidence and it seems undesirable at this stage we should in any way interfere with that Court's discretion.'
A Full Bench of this Court has in 34 Mys. H.C.R. 285 held that:
'A revision Court will scarcely be justified in interfering with a ruling given by a trial Court within its discretionary powers as to the admissibility or otherwise of particular questions in the course of the examination of witnesses before it. It may also be observed that the reception of inadmissible evidence would be less injurious to the persons affected by it than the rejection of admissible evidence because in the former case in arriving at a decision the evidence wrongly admitted can well be excluded from consideration whereas in the latter case the evidence (sic would have to be) brought on record by having recourse to further proceedings necessitating thereby the prolongation of the trial and harassment of the persons concerned.'
These observations though made in regard to pending proceedings are entitled to consideration in this case. If, as is said in this case, it is not proper to interfere with a ruling about admissibility of evidence during the trial of a case, it would be even more improper to express an opinion about it before the commencement of the trial. The need for adopting the rule is obvious in cases which may be said to be in the border line, cases in which the guilt of the accused depends only on a piece of evidence admissibility of which is subject to difference of view and it may well happen that the view of the Revision Court is adverse to the accused. In such an event the accused will be prejudiced and the Court of Session will be embarrassed during the trial and the appellate Court too may be fettered in the decision of the case.
7. More important than the question of deciding the admissibility of evidence is that of absence of evidence against the accused being a ground for quashing the commitment. If as was held in 15 Mys. Law. Jour. 141, this Court cannot examine the evidence to see whether the commitment is justified or not, the question of the evidence or portion thereof being inadmissible will not arise. This case was sought to be distinguished from the present one as being concerned only with insufficiency and not lack of evidence and reconsideration of the opinion expressed by the single Judge who decided the case about the limitations under Section 215 to look into the evidence was said to be necessary. Judicial opinion as regards this is by no means clear, consistent or uniform. Conflicting views are entertained by Judges of the same High Court on the question and there is a sharp cleavage of opinion between one High Court and another about it.
8. The earliest case in which absence of evidence to connect the accused with the offence is stated to be a defect in point of law sufficient to justify the commitment being quashed is Empress v. Narottam Das, 6 ALL. 98 decided by a single Judge. The judgment shows that the main reason for quashing the commitment was that there was no valid sanction for the prosecution under Section 195, Criminal P.C., and the absence of evidence is mentioned as an additional reason, so that the case is not one in which the commitment was quashed solely on the ground of want of evidence. There is no discussion of the evidence or the scope of Section 215, Criminal P.C. In two cases of the Calcutta High Court, Jogeshwar Ghose v. King Emperor, 5 C.W.N. 411 and Sheo Bux Ram v. Emperor, 9 C.W.N. 829: (2 Cr.L.J. 534), the commitments were quashed on a consideration of the evidence holding that absence of evidence is a point of law. These cases no doubt support the petitioner's contention. But in Danamia v. Mamtazal Karim, : AIR1941Cal271 , a Division Bench while rejecting the objection to a commitment on the score of the Magistrate being himself competent to they the case remarked:
'Sitting as a Court of Revision we do not enter into the facts of a particular case and we see no reason to depart from that well-established practice.'
The High Court of Bombay and Madras have, however, definitely refused to countenance the contention relating to absence of evidence as a ground or interference under Section 215. In Emperor v. Suleman Ibrahim, 13 Bom. L.R. 201 : (10 I.C. 802), the argument urged against the commitment was that there was no evidence on record to sustain the charges. Chandavarkar J. observed:
'That may be so, but that alone is not a ground for this Court's interference at this stage and quashing the order of committal.'
Heaton J. agreeing to dismissal of the petition remarked: 'The order may be convenient or indiscreet but is not illegal.' In re Sessions Judge Coimbatore, 27 M.L.J. 593 : (A.I.R. (2) 1915 Mad. 24 : 15 Cr.L.J. 665), there was a reference by the Sessions Judge fora charge of murder framed against the accused being quashed on the ground that there was no evidence to show that the person alleged to have been murdered was dead. Shankaran Nair and Taybji JJ. preferred the view in Emperor v. Sulaiman Ibrahim, 13 Bom. L.r. 201 : (10 I.C. 802) to that in Empress v. Narottam, 6 ALL. 98 and dismissed the petition stating:
'He (Sessions Judge) asks us to quash the commitment on the ground that there is no evidence to justify the commitment. We are of opinion that on this ground it is not open to the High Court to quash a commitment.'
In Maruti Jairam v. Emperor, A.I.R. (22) 1935 Nag. 202 : (36 Cr.L.J. 1389), Grille J.C. adopted the views of the Bombay and Madras High Courts and refused to treat absence of evidence as a point of law to quash a commitment under Section 215, Criminal P.C. Sri Krishnamurthy on behalf of the petitioner pressed for acceptance of the opinion of Beckett J. in Bhagat Ram v. P.T. James, A.I.R. (32) 1945 Lah. 1 : (46 Cr.L.J. 648) which is stated thus:
'My own view is that the absence of evidence sufficient to justify an order of commitment may be regarded as a legal ground though it may be sometimes difficult to draw a line between a ground of this kind and mere weakness of the defence. The criticism may possibly be as my learned brother suggests that a number of ingredients are generally required to make up an offence and if it appears from the evidence that one of these ingredients is entirely lacking from the prosecution case this would be a legal ground for quashing the commitment.'
Though the application for quashing the commitment was dismissed, the opinion of the learned Judges being in keeping with the decisions of the Calcutta and Allahabad High Courts and supported by the view of a single Judge of the same Court is entitled to careful consideration. The difficulty presented by embarking on a scrutiny of the evidence is well pointed out by Tapp J. in Hassan Din v. Emperor, A.I.R. (18) 1931 Lah. 467 : (32 Cr.L.J. 867) in these words:
'Assuming for the moment that the absence or insufficiency of evidence is a point of law it would be necessary for me to go through and consider the evidence before I can arrive at a finding that there is no evidence to justify the commitment. In short I have to decide first a point of fact and in so doing usurp the functions of the trial Judge and deciding the guilt or innocence of the accused before the trial.'
If as the learned Judge points out the distinction between absence and insufficiency of evidence is tenuous, as it often is, it is hardly possible except by being arbitrary to fix with any definiteness or certainty the limits of interference. It would seem unjust or unreasonable to deny interference only because there is a scintilla of evidence, however worthless and unacceptable the same manifestly is, and freely quash the commitment when it is found absent. Cases which rest on circumstantial evidence present, and decision in which depends on inferences further indicate the possibility of risk of interference since there is no hard and fast rule governing the conclusion arrived at and every case of that category may be said to fall under Section 215 with the result that this Court may be required to read the evidence in any case and determine before the trial whether it justifies the committal. The disadvantage to the accused resulting from the rejection of the application for quashing based on an unfavourable view of the evidence is not to be lost sight of. I have already referred to this aspect in connection with the question of deciding admissibility of evidence. The remarks of Sir George Rankin C.J. in the Full Bench case Girishchandra v. Emperor, : AIR1929Cal756 about such applications are pertinent:
'If such an application was entertained and refused the result would be that a prisoner committed upon evidence, sufficiently weak to make the result of a trial doubtful, would come to his trial prejudiced by the opinion of the High Court pronounced against him to the effect that the commitment ought not to be quashed. Applications of this character would clearly be objectionable. But Section 273 provides suitably for this very class of cases.'
Chagla J. in Emperor v. Husain Ali, A.I.R. (29) 1942 Bom. 212 : (43 Cr.L.J. 773) observed:
'To my mind it is clear that if on the evidence recorded by the committing Magistrate it is found that no offence has been committed the proper procedure is for the Court to make an entry under Section 273 that the charge is unsustainable.'
Section 273 by which an entry to the effect that the charge is clearly unsustainable may be made by the High Court before the trial commences is omitted in the Mysore Code but I think the words in Section 215 being the same as in the Indian Code the class of cases to which the section was meant to apply is not different in Mysore.
9. It was argued that refusal of interference will entail unnecessary harassment to the accused and waste of time to the Court of Session. As against this, there is the consideration of prejudice to the accused occasioned by matters in doubt being judged against him and time of this Court being occupied with deciding matters to be dealt with by the Court of Session. The Code provides for accused being relieved from needless prolongation of proceedings by enabling the Public Prosecutor under Section 494 to withdraw the case and if he does not choose to do so by empowering the Court of Session under Section 289 (2) to record a finding of not guilty or direct the jury to return a verdict of not guilty in cases where there is no evidence.
10. Lastly, the materials on which the Court of Session has to come to a decision are not necessarily confined to the evidence recorded by the Magistrate. Section 540 gives an option to any Court to summon any person at any stage of any inquiry or trial as a witness if it considers the evidence material for a just decision. It is possible that by the Court of Session exercising this option there may be evidence other than what is adduced during the inquiry. The effect of quashing the commitment on account of want of evidence before the Magistrate would render the section to be of no avail in such cases. Though there are some cases and some thing may be said in favour of the view that absence of evidence is a point of law on which a commitment can be quashed, the volume of opinion in support of the view taken in 15 Mys. L.J. 141 is sufficient and strong enough not to depart from it. Having regard to the weight of authority and considerations mentioned above, it seems to me that this Court cannot be required under Section 215 to examine the evidence to determine whether any portion of it is admissible or not, and whether the evidence justifies the commitment or not. In my opinion, there are no grounds to quash the commitment in this case under Section 215, Criminal P.C. The petition is, therefore, dismissed.
11. I agree with the decision.
12. This is a criminal revision petition filed under Section 215, Criminal P.C., to set aside the order committing the petitioner accused to take his trial before Court of Session for an offence under Section 376, Penal Code, passed in C.C. 546 of 48-49 on the file of the Special First Class Magistrate, Madhugiri.
13. The prosecution case is that the accused raped P.W.3 Lakshamma, a girl of about 7 years. Of the 14 witnesses examined in the case P.W.3, Lakshamma states that she does not know the accused and that somebody took her to a room in a Choultry and raped her. P.W.2 is her mother, who came to know about the incident in the evening of the date on which the incident is said to have taken place, while P.W.1 is the girl's father, who came to know about the incident a day later, as he was not in station on the date of the incident. He filed the complaint before the Police as per Ex. P.1 on the subsequent morning. P.W.4 states that about 1 1/2 months prior to the date of his deposition, he saw the girl crying near the house of the accused and that this was one day prior to the date of his examination before the Police. He was examined some days after the incident and it is clear that P.W.4 did not see the girl on the date on which she is said to have been raped. P.W.5 Papanna states that on being questioned by the Sub-Inspector, the girl pointed out to the accused by touching him as the person who raped her, after inducing her by giving eatables, and that the girl showed the house of the accused and a room in it. P.Ws. 6 and 9 are said to have been present at the time the girl identified the accused before the Police Sub-Inspector. They stated that the girl did not touch the accused or point at him as the person who raped her. P.W.7 is the Lady Sub-Assistant Surgeon who has stated that there was yellow discharge and inflammation of the private parts. According to her, this might have been caused either by rape or due to disease. P.W.8 is the Sub-Assistant Surgeon who examined the accused and did not find anything incriminating. P.W.10 says that on a Sunday he saw the girl Lakshamma standing and the accused going. P.W. 11, 12 and 13 are witnesses who refer to some articles being sent to the Chemical Examiner, and their evidence is not material, as nothing incriminating is discovered by the Chemical Examination. P.W.14 is the Investigating Officer. While the evidence of P.Ws. 6 and 9 do not corroborate the Investigating Officer, P.W.14 about the girl having identified the accused, P.W. 14 the Sub Inspector says that the girl identified the accused; but P.W.5, the mahazar witness adds that she identified him as the person who raped her. This is all the evidence in the case. The point that is contended before us is that even assuming that the girl identified the accused before the Sub-Inspector, it does not necessarily follow that he raped her, that as the evidence, that she pointed out the accused and his house in answers to the questions put by the Sub-Inspector is inadmissible, there is absolutely no evidence to connect the accused with the offence and the commitment which is illegal has to be quashed. On the other hand, it has been urged that mere absence of evidence cannot be a ground for quashing a commitment under Section 215, Criminal P.C., according to which, a commitment once made under Section 213 by a competent Magistrate or by a Civil or Revenue Court under Section 478, can be quashed by the High Court only, and only on a point of law.
14. The main point for consideration, therefore, is whether the commitment without any evidence connecting the accused with the offence or only on the basis of evidence which is inadmissible is a point of law enabling the High Court to quash the commitment. It is, therefore, necessary to find out whether the evidence of P.W.5, when he says in answer to a question put to P.W.3, by the Sub-Inspector, that she pointed out the accused as the person who raped her, is admissible in evidence or not. We are not on the point as to whether P.W.5 could be believed or not, as he says much more than what the Sub-Inspector whom he is said to be corroborating, has stated, or as two other persons present at that time have stated that the girl did not point out the accused. What we are concerned with is, whether her pointing out the accused when she was questioned by the Police Officer as to whether the accused was the person who raped her, amounts to a statement made to the Police Officer, and is inadmissible in evidence. Moreover, if an identifying witness examined in Court, states there that he cannot identify anyone, there is obviously nothing to corroborate him and so the evidence of the previous statement, express or implied made in the course of the identification proceedings is not admissible. There are a number of cases that support this view, but I may only a refer to a few of them. In Nagina v. Emperor, A.I.R. (8) 1921 ALL. 215 : (27 Cr.L.J. 813), it is observed that:
'The law does not allow statements of this kind to be made available as evidence in the trial unless and until the persons who made those statements are called as witnesses. When these persons are called as witnesses, then these previous statements become admissible, not as substantive evidence in the case, but merely as evidence to corroborate or contradict the statements made by these witnesses in Court. If when an identifying witness called in the Sessions Court, states there that he can identify no one, there is obviously nothing to corroborate and so the evidence of the previous statement express or implied, made in the course of the identification proceedings in the Jail is not admissible.'
It is to corroborate the evidence of the girl that she identified the accused before the Police that the evidence of P.Ws. 5, 6, 9 and 14 could be let in P.Ws. 6 and 9 do not support the prosecution; while the evidence of P.Ws. 5 and 14 is useless and cannot be substantive evidence in the case as held in Nagina v. Emperor, A.I.R. (8) 1921 ALL. 215 : (27 Cr.L.J. 813). It cannot be said to corroborate the evidence of P.W.3, as she has not stated that she identified the accused before the Police Sub-Inspector and no one is corroborating her that she was raped in a choultry. Further, as observed in Khabiruddin v. Emperor : AIR1943Cal644 .
'Pointing out by finger or nod of assent in answer to a question is as much a verbal statement as a statement by word of mouth. The witnesses should not be allowed to depose to the fact that they had identified the stolen property in the presence of the Police Officer.'
It is observed in Krishnachandra v. Emperor : AIR1935Cal311 , that:
'A statement express or implied by the complaint to the investigating officer to the effect that the accused was the person who attempted to rob her is in admissible in evidence.'
As regards the distinction made between the verbal statement and identification by pointing out a person, it has to be remembered that identification is a mental act and this can only be known to the person that identifies. The fact that he identified something can only be known to others by his telling so or by his making signs conveying to them the fact that he identifies the person. While the person who identifies even before a Police Officer can say that he did so, as that cannot be a statement made to a Police Officer the fact that that matter was conveyed to a Police Officer either by words or by signs cannot be spoken to either by him or by the Police Officer or by any person present as Section 162, Criminal P.C. prohibits this being done. As observed in a very illuminating judgment in Surendra Dinda v. Emperor, I.L.R. (1945) 2 Cal. 513 : (A.I.R. (36) 1949 Cal. 514:48 Cr.L.J. 804):
'Identification is essentially a mental act.... What is said or done after the mental act may be, deliberately done, to conceal the fact. In any case, the actual fact of identification is something known only to the identification and can only be known to others by a statement having the effect of communicating the fact of identification.'
The position can be made clear by considering whether a sing made to a Police Officer by an accused, conveying the idea that it is he who committed the offence is or not a statement made to a Police Officer. An accused's affirmative nod in answer to the question of the Investigating Officer whether the girl raped by him is the girl in question cannot but be a statement to a Police Officer and thus inadmissible in evidence. If so, the girl's sign to the Investigating Officer showing that the person who raped her is the accused is equally a statement made to the Police Officer. In the first place the evidence of P.Ws. 5 and 14 that refer to the identification by P.W.3, of the accused is not admissible in evidence under Section 162, Criminal P.C., and even otherwise evidence of these two persons cannot be a substantive piece of evidence, as it can only be taken into consideration to corroborate the evidence of P.W.3 in case she had stated that she identified the accused before the Police. It will thus be seen that the evidence of P.Ws. 5 and 14 about the identification is neither admissible nor can be taken as substantive evidence. As observed in Emperor v. Nga Tha Din, A.I.R. (13) 1926 Rang. 116 : (27 Cr.L.J. 881 F.B.):
'The provisions of Section 162 as amended absolutely bart the use of statements, both oral and written and make those statements inadmissible for any purpose under the Evidence Act in any enquiry or trial except for one purpose and that is by the accused to contradict a prosecution witness in the manner provided by Section 145, Evidence Act.'
15. The next point for consideration is whether absence of evidence or the fact that the only piece of evidence that connects the accused in any way with the offence is inadmissible raises a point of law enabling the High Court, under Section 215, Criminal P.C. to quash a commitment made under Section 213, Criminal P.C. It was contended that the High Court is not entitled to go into evidence under Section 215, Criminal P.C., as a commitment can be quashed only on a point of law. In considering this aspect of the matter it would be useful to keep in view the scheme of trial of cases triable by a Session Court as against that of the case triable by a Magistrate. It will be noticed that before a case can be tried by a Court of Session, an enquiry under Chap. VIII by a Magistrate is contemplated while in other cases a Magistrate can make an enquiry prior to the charge and try the accused himself. Therefore, the intention of the Legislature in ordering an enquiry and stating when a commitment has to be made is clearly to save the trouble, time and expenses involved in the trial of sessions cases, by preventing cases in which there is absolutely no evidence warranting a trial before that Court being tried by that Court. This, however, should not enable the Magistrate to take on himself the functions of a Jury and to decide a question of fact and to weight the evidence in order to see whether the case is fit for conviction or not. While the Magistrate, in cases that have to be tried by him has to frame a charge under Section 254, Criminal P.C. only when he is of opinion that there is ground for presuming that the accused has committed an offence, the Magistrate, who is to frame a charge for an offence triable by a Sessions Court need not be satisfied that there are grounds for presuming that the accused has committed an offence. He has to frame a charge under Section 213, Criminal P.C., when he is satisfied merely that there are sufficient grounds for committing the accused for trial before a Court of Session. While in some decisions it has been held that the Magistrate has got a right to weigh the evidence in order to say whether the case is fit for being tried by a Sessions Court, it has been held in other decisions that it is sufficient for a charge being framed under Section 210, Criminal P.C., if he finds some evidence which if believed would show a prima facie case against the accused. It may be taken for the purpose of this case that a committal order in which there is some evidence connecting the accused is legally sufficient to warrant a committal, though in the case of a Magistrate framing a charge, he can do so only when the evidence on record enables him to presume that an offence has been committed. The result is that the powers of a Revision Court in a case triable by a Magistrate are wider than the powers of the High Court to revise the order of commitment made under Section 213, Criminal P.C. In the latter case the commitment is legal if there is some evidence which, if believed, would show that the accused is guilty. It would not be legal if there is absolutely no evidence connecting the accused with the alleged offence. This would be apparent form the fact that even in cases triable by the jury, the Sessions Judge is bound under Section 289 (3), Criminal P.C. to withdraw a case from the decision of the jury when there is no evidence that the accused committed the offence and to direct them to return a verdict of not guilty. Thus, the scheme of trial of Sessions cases as found in the Criminal Procedure Code makes it clear that a commitment to a Sessions Court is only legal when there is some legal evidence connecting the accused with the offence. I may add here that it is very usual, as is clear by this very case, for the Magistrate holding enquiries in cases triable in Sessions Court to commit the cases, even when there is absolutely no evidence justifying a commitment. If they are encouraged in committing almost all the cases, as they have been doing, as in this case, the time of the Sessions Court will be wasted, and the very object of having a preliminary enquiry before a Magistrate to save the time expenses and inconvenience of a Sessions trial in cases which are not fit to come before a Sessions Court would be defeated if the High Court does not interfere under Section 215, Criminal P.C., in cases of this kind. The argument that this Court would be resorted to in a large number of case if the sphere of interference by this Court is enlarged, has therefore no substance, as I think Section 215, Criminal P.C. is intended to give relief in cases in which the Magistrate cannot legally pass an order of commitment.
16. It was urged that the absence of reference to the word evidence in Section 215, Criminal P.C. makes it clear that the Court cannot consider whether there is evidence to justify a commitment or not. The section no doubt says that a commitment can be quashed only on a point of law. But nowhere has the phrase 'point of law' been defined in the Code. How can one understand when it can be said that there is a point of law as distinguished from a point of fact? There are, however other sections in the Criminal Procedure Code referring to points of law and points of fact. For instance, the point of law has to be decided by the Judge and a point of fact has to be decided by the jury in certain case. There is also the provision under Section 100, Civil P.C., under which a second appeal can lie on a point of law. So, luckily what a point of law is, has been considered in a number of cases and the observations make it clear that in all these case the phrase 'point of law' has got the same meaning. What then is meant by 'point of law'? In Emperor v. Md. Israil, : AIR1930All24 , it was observed:
'If the verdict of the Jury has been influenced by evidence which was inadmissible or proceeds upon no evidence at all, this is a matter of law.
As observed by Jackson J. in The Queen v. Bahar Ali Kahar, 15 W.R. Cr.46:
'If there is a total absence of all evidence to show that the prisoner had committed the crime, the conviction by the Jury cannot be allowed to stand; it will be bad in law and must be set aside.'
Mookerjee J. added:
'I entirely concur, I think there was no evidence in this case to go to a jury.'
In Queen v. Chand Bagdee, 7 W.R. Cr. 6, Markby J. observed:
'In the case of these three prisoners also, therefore, we think there was no evidence against them, and that the Sessions Judge ought so to have directed the Jury; it follows that the convictions are illegal.'
It might here be noticed that a distinction is made between total absence of evidence and some evidence, which in the opinion of the High Court may not justify a conviction. It is clear from this decision that even if the High Court is of opinion that the evidence does not justify a conviction, the High Court cannot interfere if there is some evidence that can go before the Jury. It was observed in the above decision as follows:
'We share the doubts expressed by the Sessions Judge as to the genuineness of the confession made by this prisoner and since retracted. The case against this prisoner was one which required very close and attentive consideration. But the lamentable incompetence which this Jury has displayed in the performance of their duties, with respect to the other ten prisoners, does not induce us to place much reliance on their verdict in this case. WE are, however, unable to say that there was no evidence against the prisoner upon which the Jury would be justified in convicting the prisoner; and the law has made the verdict of a Jury once passed upon the evidence final.'
It is, therefore, clear that absolute lack of evidence is a point of law and the case in which there is no such evidence need not go, for decision, before a Jury.
17. We may next refer to observations in cases where the phrase point of law has been explained and it is shown that its scope when the point is raised in connection with the maintainability of a second appeal is the same as its scope when the point is raised in criminal cases. As observed by Lord Watson in the Privy Council decision reported in Anangamanjari v. Tripura Sundari, 14 Cal. 740 at p.747 : (14 I.A. 101 P.C.):
'It was in the opinion of their Lordships within their jurisdiction to dismiss the case if they were satisfied that there was, as an English lawyer would express it, no evidence to go to the Jury, because that would not raise a question of fact such as arises upon the issue itself, but a question of law for the consideration of the Judge.'
It is Lord Watson again that made it clear that if a finding is based on some evidence, however, unsatisfactory, the finding is one of fact and that no question of law arises. This opinion is expressed in the Privy Council decision reported in Ramratan Sukal v. Nandu, 19 Cal. 249: (19 I.A. 1 P.C.), where it is observed that:
'It has now been conclusively settled tha the third Court, which is in this case the Court of the Judicial Commissioner cannot entertain an appeal upon any question as to the soundness of findings of fact by the second Court; if there is evidence to be considered, the decision of the second Court, however, unsatisfactory it might be if examined, must stand final.'
It has, however, to be observed that the evidence available must be admissible, as observed by Lord Buckmaster in the Privy Council decision reported in Nafar Chandra v. Shukur Sheikh, 46 Cal. 189 : (A.I.R. (5) 1918 P.c. 92) :
'Questions of law and of fact are sometimes difficult to disentangle. The proper legal effect of a proved fact is essentially a question of law, so also is the question of admissibility of evidence and the question of whether any evidence has been offered on one side or the other, but the question whether the fact has been proved, when evidence for and against has been properly admitted, is necessarily a pure question of fact.'
While, therefore, there appears to be no doubt that when there is some admissible evidence, however small it might be no question of point of law arises and the High Court cannot quash the commitment made under Section 215, Criminal P.C., unless the committal is illegal on other grounds, if there is total lack of admissible evidence connecting the accused with the offence, a point of law arises and the commitment has to be quashed.
18. I may now refer to a number of cases in which absence of evidence has been held to be a point of law enabling the High Court to quash commitments. The first case that might be referred to as directly on the point is the decision reported in Sheobux Ram v. Emperor, 2 Cr.L.J. 534 : (9 C.W.N.829), Harrington J. observed that:
'The test which should be applied to decide whether a committal ought or ought not to be made on the facts is this--assuming that the whole of the evidence telling against the accused is true, is there a case which a Judge at a trial could leave to a jury? If the evidence is such that a Judge would have been bound to rule that there was no evidence on which a Jury could convict then a committal ought not to be made. If there was any evidence which called for an answer--however great the preponderance in favour of the prisoner might be--then the committal was proper.'
Henderson J. observed that:
'The object of a preliminary enquiry in a criminal case against the accused before a commitment is made and if all that can be said is that there is a mere scintilla of evidence then there should be no commitment.'
In Jogeshwar Ghose v. King Emperor, 5 C.W.N. 411, it was observed that:
'Absence of evidence to warrant a commitment is a point of law and may furnish a good ground for the quashing of a commitment. Under the present Code of Criminal Procedure, a Court of Session does not possess the power to withdraw a case from the jury on any ground whatsoever. Where the case is such that the Sessions Judge would, if he possessed the power of withdrawing the case from the jury, exercise that power, the High Court will exercise its powers of revision.'
In Gansham Das v. Emperor, A.I.R. (17) 1930 Lah. 545: (31 Cr.L.J. 814) it was observed:
'Where there is no evidence to support an 'order of commitment, the commitment must be quashed because absence of evidence is a question of law and not of fact.'
The decisions in Jogeshwar Ghose v. King-Emperor, 5 C.W.N. 411, Empress v. Narotham Das, 6 ALL. 98, Sheo Bux Ram v. Emperor, 9 C.W.N. 829: (2 Cr.L.J. 534) and Rustam v. Emperor, 38 ALL. 29: (A.I.R. (2) 1915 ALL. 411: 16 Cr.L.J. 801), have been followed in this case. In Jogeshwar Ghose v. King Emperor, 5 C.W.N. 411, it was observed:
'Insufficiency of evidence has never been treated as a ground for quashing a commitment, but this Court following the principle laid down by the Courts in England has held that the absence of evidence to warrant a commitment is a point of law and may furnish a good ground for quashing the commitment...... This Court has to consider whether there is such evidence as would justify the case going before a jury.'
This decision has been followed with approval in Nga Hmyin v. Emperor, 43 I.C. 326: (A.I.R. (5) 1918 U.B. 11: 19 Cr.L.J. 102) in which it was observed 'The absence of evidence to warrant a commitment is a point of law.' I might add that the observations made in Anangamanjari v. Tripura Sundari, 14 Cal. 740: (14 I.A. 101 P.C.) by the Privy Council has also been relied on in this case making it clear thereby what is meant by a point of law in civil or criminal cases is the same. In Tambi v. Emperor 46 I.O. 817 : (A.I.R. (6) 1919 L.B. 146 : 19 Cr.L.J. 801), again, it was observed:
'Under Section 215, Criminal Procedure Code the High Court is precluded from 'entertaining an application for revision on a question of fact against an order of commitment made under Sections 213 and 214 of the Code, but it has power to quash a commitment if there is no evidence to support it, the absence of such evidence being a question of law and not of fact.'
It was observed in Emperor v. Mihilal : AIR1940All396 .
'In cases in which there is no evidence to warrant a commitment and in cases in which commitment is made on no legal evidence at all, action may be taken under Section 215.'
The decision in (Sheo Bux Ram v. Emperor, 9 C.W.N. 829: (2 Cr.L.J. 534) has been quoted with approval in this case.
19. I may now refer to cases which are relied on to show that a commitment made under Section 213, Criminal P.C., cannot be quashed, even if the committal is not based on any legal evidence. As regards the case reported in Emperor v. Suleman Ibrahim, 10 I.C. 802: (18 Bom. L.R. 201) and In re Sessions Judge, Coimbatore, 15 Cr.L.J. 665: (A.I.R. (2) 1915 Mad. 24) the judgments are short and the question as to whether absence of evidence is a point of law or not, are not considered in these case. The orders here are based on references made by Sessions Judges and it was observed that even if there was no evidence as stated by the Sessions Judge no interference can be made. The decision do not, therefore, throw any light as to how the absence of evidence is not a point of law. The decision reported in Emperor v. Nga Taung Thu, 15 Cr.L.J. 270: (A.I.R. (1) 1914 L.B. 9), refers to a case of evidence which is not beyond doubt. It was observed in this decision that:
'A commitment order can be quashed under Section 215, Cr.B.C., only on a point of law--A commitment order cannot be quashed merely on the ground that the evidence was doubtful.'
That is no doubt correct, as sufficiency or insufficiency of evidence cannot be considered under Section 215, Cr.P.C. The decision in Hassan Din v. Emperor, A.I.R. (18) 1931 Lah. 467: (32 Cr.L.J. 867) was also relied on. This decision deals with a case in which the Magistrate, it was observed, had found a prima facie case had been made out against the petitioner, and it cannot be said that it is strictly a case in which there was total absence of evidence. Dana Mia v. Mamtazal Karim : AIR1941Cal271 is clearly a case in which the commitment was based on some evidence as what was questioned is the propriety in the exercise of discretion of the Magistrate in having committed the accused. The decision in Ismail v. Emperor, A.I.R. (12) 1925 Nag. 409: (26 Cr.L.J. 1045) that a commitment cannot be quashed on the ground that there is no evidence does not give any reasons and it merely follows the decision in Emperor v. Suleman Ibrahim, 10 I.C. 802: (13 Bom. L.R. 201) and In re Sessions Judge, Coimbatore, 27 M.L.J. 593: (A.I.R. (2) 1915 Mad. 24: 15 Cr.L.J. 665) referred to above. Maruti Jairam v. Emperor, A.I.R. (22) 1935 Nag. 202: (36 Cr.L.J. 1389) deals with a case in which it was observed that 'The evidence against Maroti is admittedly meagre.' It is thus made clear that it is a case of insufficiency of evidence. As observed in, Girishchandra v. Emperor : AIR1929Cal756 , Section 215 Cr.P.C.
'Is intended to restrict a High Court to cases in which it can be said that the commitment is bad in law.'
It does not state that a commitment based on no evidence or only on evidence prohibited under Section 162, Criminal P.C., is or is not illegal. In Hussainbhoy Mahomadbhoy v. Emperor 35 Cr.L.J. 884: (A.I.R. (21) 1934 Sind. 27) it was observed that
'Whether there is no evidence at all, the commitment may be quashed, because, absence of evidence for commitment is a point of law.'
Burjorji Nowroji v. Emperor, A.I.R. (15) 1928 Bom. 220: (29 Cr.L.J. 987), is again a case in which it cannot be said that the question whether total absence of evidence is a point of law or not is considered. The last case I may refer to on this aspect of the matter is the decision of this Court in Rangiah v. The Government of Mysore, 15 Mys. L.J. 141, Chari J. sitting in revision held that:
'Section 215, Criminal P.C., restricts and circumscribes the power of the High Court to quash commitments once made under Section 213. Though a commitment can be quashed on a point of law, for example, on a question of jurisdiction or on the ground that the facts did not necessarily establish the offence charged or that it was an unnecessarily commitment, it cannot be quashed on the ground that there is no evidence to justify a commitment and even if the order is inconvenient or indiscreet, unless it is also illegal.'
In this case the observation that there was no evidence to justify a commitment makes it clear that the evidence ws not sufficient to justify the commitment. As observed by the learned Judge in that case:
'The impression left upon one's mind is that there has been a great deal of hesitation on the part of the Magistrate in coming to a conclusion that there was a prima facie case against the accused in both the cases justifying a commitment.'
The observations make it clear that it was a case in which there was some prima facie evidence and no question arose as to whether total absence of evidence was a point of law, enabling the High Court to quash the commitment. In fact the learned Judge observed that a commitment can be quashed 'on the ground that the facts did not necessarily establish the offence charged.' This is evidently what was meant by Beckett J. when in explaining in, Bhagat Ram v. P.T. James, A.I.R. (32) 1915 Lah. 1: (46 Cr.L.J. 648), how absence of evidence may be regarded as a legal ground for quashing the commitment, he agreed with the suggestion of Martin J. that
'A number of ingredients are generally required to make up an offence and if it appears from the evidence that one of these ingredients is entirely lacking from the prosecution case this would be a legal ground for quashing the commitment.'
As observed in 8 Mys. L.J. 121:
'If there is no evidence at all, not a scintilla of evidence on which the prosecution case can stand, the Judge may under Section 289 Clause (2), Criminal P.C., direct the Jury to return a verdict of not guilty. If he did not do so, it may amount to such a misdirection that the High Court can set aside the verdict.'
20. To sum up, a large number of decisions including those of their Lordships of the Privy Council hold that a point of law arises when there is a finding without any evidence and that its scope is the same in criminal and civil cases. A number of case directly on the point consider that absence of evidence as distinguished from insufficiency of evidence, to warrant a commitment is a point of law furnishing a good ground for quashing the commitment while the few cases that appear to hold that it is not so, give no reasons and appear to be classing absence of evidence with insufficiency of evidence. I am, therefore, of opinion that
'in case in which there is no evidence to warrant a commitment and in case in which commitment is made on no legal evidence at all, action may be taken under Section 315, Criminal P.C.'
As well put in Emperor v. Mihilal, : AIR1940All396 I might also refer again here to the opinion expressed by Lord Buckmaster in Nafarchandra v. Shukur Sheikh, 46 Cal. 189: (A.I.R. (5) 1918 P.C. 92), that admissibility of evidence raises a point of law.
21. Even if it is assumed that all the evidence adduced in this case is admissible, it has to be stated that the commitment can be quashed in this case as, as stated in Rangiah v. The Government of Mysore, 15 Mys. L.J. 141. 'The facts did not necessarily establish the offence charged.' There is evidence to show that the girl P.W.3, was raped in a choultry. That the accused it is that did so is not proved by any evidence admissible or inadmissible. There is the evidence that the girl showed the house of the accused to the Investigating Officer. She did not point out the choultry where according to her she was raped. It is in the evidence of the Police officer P.W.14, that before him the girl identified the accused; even if this is admissible it does not show that the accused raped her. P.W.5, states much more than P.W.14, though the former was examined to corroborate the latter. he says that the girl pointed out, to the Policy Officer P.W.14, the accused as the person who raped her. This is evidence of what the girl did before the Police Officer and not of what the accused did. To recall the observation in Nagina v. Emperor, A.I.R. (8) ALL. 215: (27 Cr.L.J. 813)
'The law does not allow statements of this kind to be made available as evidence in the trial unless and until the persons who made those statements are called as witnesses. When these persons are called as witnesses, these statements become admissible not as substantive evidence in the case but merely as evidence to corroborate or contradict the statements made by these witnesses in Court.'
In this case P.W.3, whose statement is referred to by P.W.5, has been examined. The evidence of P.W.5 about what P.W.3, stated before the Sub-Inspector contradicts her evidence, but as observed in the above decision the evidence of P.W.5 is not substantive evidence in the case. If any further authority is necessary, I would support myself on the authority of the legal luminary Sir John Beaumont according to whose observation in Brij Bhushan v. Emperor :
'A statement made under Section 164, Criminal P.C. cannot be used as a substantive piece of evidence. The statement can be used to cross-examination the person who made it and the result may be to show that the evidence of he witness is false. But that does not establish that what he stated out of Court under Section 164, is true.'
This case is of some importance as the point involved is almost the same as the one now under consideration. The Privy Council made it clear that it normally refuses to reject the view which the High Court or Chief Court takes of the evidence. It was found however that witnesses turned hostile and the finding was not based on that eye-witnesses stated before Court but was based on what they had stated under Section 164, Criminal P.C. out of Court. That cannot be regarded as evidence before Court, and the Privy Council had to interfere and set aside the conviction based on no evidence. In this case also P.W.3, the only eye-witness in the case does not support the prosecution. What she conveyed to the Sub-Inspector out of Court is not evidence and does not establish the truth of what she intimated to him. Even if Section 162, Criminal P.C. did not come in the way of adducing evidence of what she said or did before an Investigating Officer, evidence of what she said or did is not evidence of what the accused did. There is no evidence connecting the accused with the offence. Thus, the commitment in this case is based on no evidence and has to be quashed.
22. But the evidence of what P.W.3, communicated to the Police Officer, adduced by the prosecution is inadmissible in evidence under Section 162, Criminal P.C. Where the only piece of evidence connecting the accused with the offence is what is prohibited under Section 162 or what is prohibited under Section 353, Criminal P.C. as expressed in the case reported in Belli Gowder v. Emperor : AIR1934Mad691 , the admission of evidence is clearly illegal. A commitment based on inadmissible evidence is worse than a case of committal based on no evidence. If the Magistrate knew that the evidence was not admissible he would not have recorded it, and if he later on came to the conclusion that it was not admissible he would not have committed the accused for trial before the Sessions Court. As regards consideration such as that fresh evidence could be adduced in Sessions Court under Section 560, Criminal P.C. urged by the learned Advocate-General on the authority of Mt. Niamat v. Emperor, A.I.R. (28) 1936 Lah. 533 : (37 Cr.L.J. 742 F.B.), it will be noticed that in 50 Mys. H.C.R. 364, the observation did not find favour with Venkata Ranga Iyengar J. and our present Chief Justice, who considered that it was an obiter dictum. Arguments such as that interference under Section 215, Criminal P.C. is not necessary as the Public Prosecutor could later on withdraw the case or that the Sessions Judge would withdraw the case from the Jury and them to return a verdict of not guilty or that the accused would even otherwise be ultimately acquitted by the High Court in appeal, could only cloud the issues. Such arguments are applicable even in cases in which the committal can be quashed on other points of law. The argument that incase the High Court dismisses the revision petition holding that there is some evidence, the case of accused would be prejudiced is no ground for restricting the scope of Section 215, Criminal P.C. The scope of interference in revision in case in which charges are framed by Magistrates on insufficient grounds is not restricted on the ground that the accused will be prejudiced in case the revision petition is dismissed by the High Court for the reason that the evidence as it stood then was sufficient to raise a presumption under Section 354, Criminal P.C. that the accused committed the offence. If a commitment based on no evidence or only on inadmissible evidence cannot be quashed on the ground that no point of law arises, it follows that a High Court cannot interfere with a finding of Jury based on no evidence or on inadmissible evidence and that under Section 100, Civil P.C. such a finding cannot be said to raise a point of law. I feel no doubt that the commitment based as it is, on no legal evidence but based only on inadmissible evidence has to quashed under Section 215, Criminal P.C. I would order accordingly.
23. Petition dismissed.