1. This application for revision arises from a case in which certain persons were prosecuted under Sections 147 and 304, Penal Code, and the Magistrate after a prolonged inquiry discharged them on 22nd August 1932 without framing a charge. An application for the revision of his order was made to the Sessions Judge, some of whose remarks in his order probably inspired the present application, which is made by the mother of the man who died as a result of injuries received in the course of a riot. A further point for remark is that the application to this Court was made about four months after the Sessions Judge's order, refusing to interfere in revision, had been passed. The remarks made by the Sessions Judge to which I have referred are as follows:
The main contention of the applicant is that the learned Magistrate has usurped the functions of the Sessions Court as the case was exclusively triable by the Court of Sessions and that his judgment clearly indicates this. I may at the outset say that this contention is to a certain extent a sound one. The judgment of the learned Magistrate clearly indicates that he has weighed the evidence to find out not if a prima facie case had been made out against the accused before him but whether they were guilty or not. This was not his function.
2. Nevertheless for the reasons given towards the end of his order the Sessions Judge dismissed the application for revision. It has been argued in this Court that if the Sessions Judge held that the Magistrate had usurped the functions of a Sessions Judge and tried the case instead of merely making a preliminary inquiry, he had two alternatives under Section 437, Criminal P.C., viz., (1) to order a fresh inquiry or (2) to direct the accused to be committed for trial on the ground that the order of discharge was an improper one. If the Sessions Judge really was of opinion that the case was triable exclusively by the Court of Session and that the accused had been improperly discharged the statement of law is perfectly correct. In support of the application I have been referred to a decision of a Bench of two learned Judges of this Court in the case of Emperor v. Allah Mahr : AIR1927All279 , and reference has also been made to an earlier decision in Halt Ram v. Ganga Sahai AIR 1918 All 126. In the last mentioned case, Sir George Knox held that in a case exclusively triable by a Court of Sessions a Magistrate is not empoweed to write a judgment, all that he is empowered to do is to record reasons for a discharge, if he makes such an order, and to pass the order of discharge. In the case referred to the Bench Sir Cecil Walsh divided cases of this kind into three categories which may for convenience sake be quoted here:
(1) There is the case where the evidence is prima facie so clear that nobody can entertain any doubt that the matter ought to be tried. (2) There is, on the other hand, a class of cases where the evidence is palpably tainted absurd and incredible that nobody could doubt that it would be a hardship and injust to an accused person to allow the matter to go any further. (3) There is the third category which of course provides debateable ground, where the evidence is conflicting and lays itself open to suspicion but where on the other hand it may be true, and may command itself to certain Tribunals, the Magistrate, even though he may have reasons to doubt whether if he were trying the case, he would convict, has no right to substitute his judgment for the final judgment of the Court indicated by law for the trial, and to arrive at a final decision dismissing the case in the way in which he would do if he were the trial Court. Both sides have referred to this judgment, the applicant claiming that the present case is one that comes under the third category, whereas the other side, represented by Mr. Mushtaq Ahmad, contends that the case Courts must be held to come under the second category. There can be no doubt that the provisions of the Criminal Procedure Code give to the inquiring Magistrate wide discretionary powers, and there are many decisions of this Court which go to show that the view taken by Sir George Knox in the case of Het Ram v. Ganga Sahai AIR 1918 All 126 must now be held to be too narrow a view; and in fact this opinion has been expressed in so many words by a Bench of two Judges in the case of Akbar Ali v. Raja Bahadur : AIR1925All670 . Daniels, J., remarked:Knox, J. has too narrowly restricted the functions of a Committing Magistrate; and the other learned Judge on the Bench, the present Chief Justice, while agreeing generally remarked: 'I however wish to guard myself against being understood to dissent entirely from the view expressed by Knox, J....Perhaps the learned Judge expressed himself too strongly, but the principle underlying his pronouncements seems to be sound. Section 213 uses the expression 'not sufficient grounds for committing the accused'. This expression is quite different from such expressions as 'the case not proved' or 'the accused are innocent'. I agree with the view of Lindsay, J. that when after hearing the evidence for the defence the Magistrate comes to the conclusion that their evidence rebuts that produced for the prosecution, or renders it so incredible or unreliable that a conviction will not follow, he may pass an order of discharge expressed by him in Muhammad Abdul Hadi v. Baldeo Sahai AIR 1922 All 168.
3. In the recent Bench decision of this Court to which I have already referred Emperor v. Allah Mahr : AIR1927All279 the criterion that seems to have been accepted by the Bench is that if the Magistrate:
without rejecting the evidence as totally untrustworthy and the charge as groundless inter preted the evidence and gave it a legal complexion, which, to his mind, it ought to receive, he exceeded his jurisdiction and usurped the function of the trial Court.
4. I need not consider in detail all the pronouncements that have been made on this subject by the Judges either of this Court or of other High Courts, because I consider that this is the latest pronouncement by a Bench of this Court and that it expresses broadly the views of the other Judges who have dealt with this particular question of law. In the present case the Magistrate dealt with the matter at length in an order which occupies over 20 pages of typed script, and there are passages which certainly suggest that he did believe that his function was to decide whether the accused were guilty or not guilty and not merely whether there were sufficient grounds for committing the accused for trial. What he has done in the main portion of his order however is to give reasons for holding that the alleged eyewitnesses were not to be believed. There was also a statement on record which is referred to as the dying statement of the men whose mother has made the present application, and the Magistrate without definitely finding that this statement was not to be believed has given reasons for holding that it was inspired by an interested party. His final conclusion is that:
No Court can record a conviction of any of the accused persons in this case on such flimsy, tainted, hostile, unnatural and inconsistent evidence as has been produced in this case. I therefore find that there are not sufficient grounds for committing the accused persons, and under the circumstances I have no other alternative but to discharge them.
5. Now, it cannot be said that he passed his order without rejecting the evidence as totally untrustworthy and the charge as groundless, and if he has given reasons for disbelieving the evidence of the prosecution witnesses it is not because he has interpreted the evidence but because he has found that circumstances exist which made that evidence unreliable. The Sessions Judge has also considered the evidence and has come to a conclusion which he expresses in the following words:
Undoubtedly the case as put forward by the prosecution was not a true one. There are too many falsehoods and exaggerations for any reliance to be placed on it. It would serve no purpose therefore to order the case to be committed and it is not therefore in the interests of justice that I should do so and waste public time and money. On the evidence on record there could be no other result but an acquittal.
6. It cannot be pretended that the order of the Sessions Judge, as it stands, is a satisfactory order. He has not given any reasons for holding that the Magistrate usurped the functions of the Sessions Court, and it is possible that he based his view of the law on that laid down in the case decided by Sir George Knox to which I have referred above. Even if he had believed that the case was solely triable by the Court of Session however he was not called upon to interfere unless he was also satisfied that the accused had been improperly discharged; and if the Magistrate did not exceed the powers to which I have referred, viz., those defined in Emperor v. Allah Mahr : AIR1927All279 , it follows that the accused were not improperly discharged. It is true that the Bench in this case did remark that if the case were doubtful, that is to say, if it was one in which a different Court would be likely to take a different view the case ought to be committed for trial. In the present case however the Magistrate has expressed the view that the evidence could not be accepted and the Sessions Judge has expressed the same view. There is no other authority that has been in a position to come to a judicial finding on the facts and that is their decision. I cannot therefore hold that the accused were improperly discharged, and the result is that the present application is dismissed.