Rachhpal Singh, J.
1. This is a reference by the learned Sessions Judge of Kumaun recommending that the commitment made by a Magistrate under which Mihi Lal, Pyare Lal, Kunj Behari Lal and Bishan Giri have been committed to Sessions to take their trial under Sections 366 and 120-B, I.P.C., be quashed. Section 215, Cri. P.C., ordains that:
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.
2. Now there may be cases in which there is no evidence to warrant a commitment; then there may be another class of cases in which commitment is made on no legal evidence at all. In such cases action may be taken under 8. 215, Criminal P.C. This Court however will not quash commitments where there is a prima facie case against the persons who have been committed to take their trial to a Court of Session. In such cases no legal question arises and so the Court has no power to quash the commitment. It appears to me that this aspect of the case was not brought to the notice of the learned Sessions Judge by the Public Prosecutor or by counsel for the defence. I may in connexion with this matter refer to the opinion of Harrington J. expressed in Sheobux Ram v. Emperor (1905) 9 CWN 829 where he made the following observations:
The proper test to be applied to decide the question whether a commitment 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 can 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.
3. This view was accepted by the Rangoon High Court in Mohammad Moidin v. Emperor (1924) 11 AIR Rang 165. The learned Judge who decided that case remarked that
the High Court had no concern with the question of credibility of the evidence when there is in fact some evidence on the committal record which would justify the Sessions Judge in leaving the question of guilt or innocence to the jury.
4. The Judicial Commissioner's Court of Nagpur in Ismail v. Emperor (1925) 12 AIR Nag 409, held that
a commitment can be quashed on a point of law only. It cannot be quashed on the ground that there is no evidence on the committing Magistrate's record to sustain the charges.
5. The view of the Bombay High Court on the point is expressed in a Bench decision of that Court in Emperor v. Suleman Ibrahim : (1911)13BOMLR201 . It was held that
an order of committal to the Sessions Court cannot be quashed by the High Court on the ground that there is no evidence in the committing Magistrate's record to sustain the charges. The committal can be quashed on a point of law only.
6. Thus, we see that the legal position is quite clear and that the High Court will not quash a commitment unless it is shown that the commitment was bad on a point of law. In the present case I find that the accused have been sent up for trial on two charges. So far as the conspiracy charge is concerned, there is absolutely nothing in the order of the learned Sessions Judge to show that in his opinion the evidence produced in the case does not go to establish that charge. So the recommendation that the commitment should be quashed is not competent. As regards the charge under Section 366, I.P.C., the learned Sessions Judge seems to think that the evidence produced was not sufficient to prove the charge against the accused persons. I may however repeat that the stage for expressing an opinion on this point has not arrived as yet. It is not open to a Court of Session to express a view on this point before hearing the evidence produced in the case. At one place the learned Sessions Judge makes a reference to the provisions of Section 366 and then he takes it for granted that no deception was practised on the girl, Mt. Parbati according to her evidence. We have however to take into consideration the fact that the learned committing Magistrate found that there was a prima facie case under Section 366 against the accused persons. In these circumstances it is not open to the learned Sessions Judge to hold at this stage that deception was not practised upon the girl and that force was not used. That will be prejudicing the whole matter. The prosecution case is that an offence under Section 366 was committed and that force and deception both played a prominent part in the whole matter. Now it is possible that when this story is tested it may be found that, as a matter of fact, the prosecution has failed to prove the charge against the accused persons, but at present we find that the committing Magistrate held that there was a prima facie case against the accused persons and in these circumstances the learned Sessions Judge had no option but to proceed with the trial.
7. In passing I may mention that the learned Sessions Judge's view is not quite correct when he assumes that the girl left the village of her own accord and at the request of her brothers and mother. What the girl says is that she as well as her brothers and mother were deceived, and owing to that deception they all left their village near Haldwani. Again I have to say that that statement may or may not be true, but it has got to be tested before an opinion can be expressed. It further appears from the evidence that after the girl, her relations and the accused persons had gone to Muttra one of the brothers of the girl took her back to her village near Haldwani from Muttra and thereupon the accused or some of them lodged a complaint against the girl and her relations under criminal breach of trust and warrants were actually issued for their apprehension. The statement of Mt. Parbati is that the accused or some of them came to their village and insisted that she should go to Muttra with a view to compromise the matter because her name had been mentioned in the complaint. If this allegation is true, then there cannot be any doubt that deception was practised upon the girl. If her statement is to be believed then deception was practised so that she might leave her village and go to Muttra. The girl has further stated that while she was in Muttra she was removed from the custody of her brothers and mother and taken to the house of a woman by the accused persons. Further, there is evidence on the record that the accused persons made attempts to sell the girl to the highest bidder.
8. If all this evidence is true and is believed, there cannot be any doubt that at least a prima facie case has been made out. 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. I have pointed out the above statement of the prosecution case, but it is to be clearly understood that I do not wish to express any opinion on the question of credibility of the evidence of the prosecution witnesses. That stage, I have already said, has not arrived and this Court can only go into the question of the credibility of the evidence after a decision has been given one way or the other by the Court of Session. For the reasons given above, I am clearly of opinion that the Court of Session is not entitled to express any opinion on the question of credibility before hearing the evidence nor is it entitled to go into the question as to whether or not the evidence produced in the case, if believed, would or would not prove the charge or charges against the accused persons. It is enough to say that in the present case there is evidence which makes out a prima facie case against the accused. The commitment of the accused therefore cannot be quashed because of the possibility of the Sessions Judge's holding in favour of the accused and against the prosecution after he has heard the evidence. It is not a case in which on the evidence, as it stands, no case has been made out by the prosecution.
9. It may be pointed out that under the law a very valuable right has been given to the parties to have their cases under certain sections decided by a Court of Session with the aid of assessors or jury and when the accused persons have been committed to the Court of Session by the committing Court then that commitment cannot possibly be quashed because the Court of Session is of opinion that eventually the prosecution case may not be proved. The learned Sessions Judge in his order of reference has made a mention of the revision application which had been made to this Court on behalf of the accused. That was summarily rejected and the reason was that under the law no revision is competent unless it is shown that there was a law point involved in the case; see on this point the case in Rashbehari Lal Mandal v. Emperor (1907) 6 CLJ 760 where a Bench of two learned Judges of that Court held that
Section 215, Criminal P.C., bars the revision by the High Court of an order of commitment made under Section 213...except on a point of law.
10. The result therefore is that I hold that in view of the fact that the committing Magistrate had held that there was a prima facie case the learned Sessions Judge was not justified in making a recommendation that the commitment be quashed. The commitment could have been quashed only on a question of law and there is no law point in the present case. The result therefore is that the reference made by the learned Sessions Judge is rejected and I direct that the records be returned to the Court of the learned Sessions Judge who made the reference.