1. This application in revision is directed against an order of the learned Sessions Judge of Bijnor, dated 2nd July 1947, by which he has directed the applicants to be committed to the Court of Session after setting aside an implied order of discharge by a learned Magistrate of the first class of that district. The applicants were prosecuted on the report of one Ram Sarup which was sent in writing to the police 'Station, Chandpur on 6th December 1946. The complainant's report was to the effect that his house was attacked by a number of persons who gave him a severe beating, took away his ornaments, clothes, utensils and damaged his other property. The complainant further stated that he knew two of the accused and that he did not know the others but that he could identify them if they were brought before him. He pray, ed that the accused be prosecuted for an offence under Section 395, Penal Code.
2. After necessary investigation, the investigating officer submitted a charge sheet against six persons in respect of an offence under Section 395, Penal Code. These accused persons were examined by the learned Magistrate on 28th April 1947, and 29th April 1947 was fixed by him, after hearing of arguments, for framing charges against them. It appears that the learned Magistrate on 29th April 1947, heard the arguments of the Public Prosecutor and learned Counsel for the defence and proceeded to frame charges against the accused. He framed charges against the accused under Sections 147, 452 and 323 read with Section 149, Penal Code, but did not frame any charge under Section 395, Penal Code. He did not record any reasons for not framing any charge against the accused under that section.
3. It may be taken as good law that omission to frame a charge is tantamount to an implied order of discharge. Therefore, the omission on the part of the learned Magistrate to frame a charge under Section 395, Penal Code, was tantamount to a discharge of the accused under that section. Against that implied order of discharge, the complainant filed an application in revision, under Section 437, Criminal P.C., in the Court of the Sessions Judge, Bijnor. The learned Sessions Judge set aside the implied order of discharge and directed that the applicants should be committed to the Court of Session to take their trial under Section 395, Penal Code. It is against that order of the learned Sessions Judge that the applicants have come up to this Court in revision.
4. Learned Counsel for the applicants contends that the order of the learned Sessions Judge is contrary to law. It is contended by him that the learned Magistrate had power under the law to discharge the applicants if he thought that the evidence against them was untrustworthy. In fact his argument is that it was obligatory on him under Section 253, Criminal P.C., to record an order of discharge, if his estimate of the prosecution evidence was that it could not be trusted. It was only in cases in which, in the opinion of the learned Magistrate, the prosecution evidence was either trustworthy or was possibly trustworthy that the learned Magistrate was bound to record an order of commitment. If the evidence was of an untrustworthy character, then learned Counsel for the applicants contends, it was obligatory under Section 253, Criminal P.C., on the learned Magistrate to discharge the accused. By omitting to frame a charge it is urged that the learned Magistrate clearly indicated that, in his opinion, the evidence against the accused was untrustworthy. It has been further argued that it was not necessary for the learned Magistrate to record his reasons in writing for omitting to frame a 'charge under Section 395, Penal Code, against the accused persons who are the applicants in this revision.
5. The charge for which the applicants were being prosecuted before the learned Magistrate was one which is exclusively triable by the Court of Session. For the purpose of clarifying the point which has arisen, Section 437, Criminal P.C., is reproduced below:
437. When, on examining the record of any case under Section 435 or otherwise, the Sessions Judge or District Magistrate considers that such case is triable exclusively by the Court of Session and that an accused person has been improperly discharged by the inferior Court, the Sessions Judge or District Magistrate may cause him to be arrested, and may thereupon, instead of directing a fresh inquiry, order him to be committed for trial upon the matter of which he has been, in the opinion of the Sessions Judge or District Magistrate, improperly discharged:
Provided as follows:
(a) that the accused has had an opportunity of showing cause to such Judge or Magistrate why the comment should not be made;
(b) that, if such Judge or Magistrate thinks that the evidence shows that some other offence has been committed by the accused, such Judge or Magistrate may direct the inferior Court to inquire into such offence.
6. It will be noticed that the section authorises the Sessions Judge or the District Magistrate to set aside an improper order of discharge by a Magistrate in cases which are exclusively triable by the Court of Session. But in order that a Sessions Judge or District Magistrate should be able to act under this section j it is essential that the accused must be charged with an offence exclusively triable by the Court of Session. The words 'improperly discharged' do not clearly mean perversely discharged. What impropriety implies is that the order of discharge could not have been passed, if the Magistrate had taken a reasonable view of all the circumstances of the case. By omitting to record any reasons for framing a charge against the accused under Section 395 and this was the charge for which the accused were being prosecuted, the learned Magistrate committed a serious irregularity. Section 209, Criminal P.C., authorises a Magistrate to discharge an accused if he finds that there are no sufficient grounds for committing the accused person for trial. But it also makes it obligatory on the Magistrate so discharging the accused to record his reasons for discharging him. Section 209, Criminal P.C., is to be found in chapter XVIII which deals with inquiry into cases triable by the Court, of Session or High Court, and reads as follows:
(1) When the evidence referred to in Section 208, Sub-sections (1) and (3), has been taken, and he has (if necessary) examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him, such Magistrate shall, if he finds that there are not sufficient grounds for committing the accused person for trial, record his reasons and discharge him, unless it appears to the Magistrate that such person should be tried before himself or some other Magistrate, in which case he shall proceed accordingly.
(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.
It may be that a Magistrate is not required to write a judgment, but he certainly in under an obligation under this section to record his reasons for a discharge if he makes an order of discharge. Section 209, Criminal P.C, lays down the procedure which is to govern orders of discharge in a case which is exclusively triable by the Court of Session.
7. Reference was made by learned Counsel for the applicants to a number of cases. The first case which I shall consider is that in Ella Reddi v. Emperor : AIR1937Mad654 . It was laid down by King J. in that case that:
It is the clear duty of the Sub-Magistrate to weigh the evidence of the witnesses who appear before him. If he does not, his proceedings are farcical and cross-examination or the examination of defence witnesses might as well be forbidden. He should not of course require in cases triable exclusively by the Court of Session the same high standard of proof for the prosecution which he would require incases which he can himself finally dispose of. If there merely exists in his mind a reasonable doubt as to the truth or otherwise of the evidence before him, he should commit the accused for trial and leave the Sessions Court to appreciate the evidence for itself. But this is not to say that he is precluded from finding that the prosecution case is false. If that is the only conclusion to which the evidence leads him, he would be failing in his manifest duty if he did not record his finding and discharge the accused. It is an important part of the duty of committing Courts to prevent false cases and frivolous oases from occupying the time of the Court of Session both in the interest of the accused himself and in the interests of the Court of Session.
On the basis of this case, learned Counsel for the applicants, Mr. Mushtaq Ahmad, has argued that by omitting to frame a charge against the applicants under Section 395, Penal Code, the learned Magistrate clearly indicated that, in his opinion, the evidence against them was untrustworthy. In the case referred to above, the order of the District Magistrate setting aside the order of discharge made by the sub-Magistrate was interfered with by the High Court. It is noteworthy, however, that in that case the sub-Magistrate had written a long and considered judgment in which after weighing the evidence he had found that the case against the accused was utterly, false. In the present case, there has been no recording of reasons on the part of the Magistrate who impliedly discharged the accused under Section 395, Penal Code.
8. The second case to which reference was made was that in Venkata Subbayya v. Venkata Lakshmayya : AIR1933Mad65 . This case was cited for the proposition that omission to frame a charge for which the accused is being prosecuted amounts to a discharge of the accused under that charge. Two earlier cases were referred to in that case, namely, Krishna Reddi v. Subbamma ('01) 24 Mad. 136 and Appa Razu v. Emperor ('20) 7 A.I.R. 1920 Mad. 94 and they were held to have decided that:
When a Magistrate has acquitted a person of a charge of an offence which the Magistrate was competent to try, and has at the same time by implication discharged him in respect of an offence triable only by a Court of Session, a Sessions Judge has power to order his committal in respect of the offence of which he has been EO discharged.
Strong reliance was placed by learned Counsel for the applicants on the case in Ritbhanjan Rai v. Emperor ('25) 12 A.I.R. 1925 Pat. 599, where it was held by Das J. that:
The Sessions Judge has to consider whether it was open to the Magistrate to come to the conclusion to which he did come on the materials before him. That a different view could be taken on the evidence would not justify the Sessions Judge in ordering commitment; he must come to the conclusion that the finding of the Magistrate is not only wrong but perverse
The petitioners in the aforesaid case had been discharged by the Magistrate but in revision the Sessions Judge directed them to be committed to the Court of Session. In the course of his judgment Das J. observed:
The finding of the learned Sessions Judge on this point is somewhat halting; but as I read the judgment, he does not even say that the finding of the Magistrate is wrong although he does throw some doubt on that finding. In my opinion there is no case to be tried either under Section 304 read with Section 149 or under Section 147, Penal Code.
It will be noticed that in the case which Das J. had to deal with there had been a proper recording of reasons by the learned Magistrate. In fact the judgment of Das J. shows that the learned Magistrate had referred, in discharging the accused, to circumstances which in his view were important as disclosing that the prosecution case was untrustworthy. I must not be understood to agree with the observation of Das J. that it is Only in eases where the finding of the Magistrate that the prosecution evidence is perverse that a Court of Session is entitled to revise an order of discharge by a learned Magistrate. It is unnecessary, however, for the purposes of deciding this revision, to enumerate all the circumstances which would justify a Court 61 Session to set aside an order of discharge.
9. In Mohammad Hussain v. Mt. Nanhi : AIR1930All257 , the complainant had brought a charge under Section 406, Penal Code, against the applicant. The offence under Section 406 is not exclusively triable by the Court of Session, The case clearly was not one to which the provisions of Section 437, Criminal P.C., which gives wide powers in cases which are exclusively triable by a Court of Session apply. Young J. made the following observation in that case:
An order of discharge should only be set aside very sparingly and only when it can be said either to be perverse or prima facie incorrect and there is a suggestion that any further evidence might be forthcoming.
Young J. was dealing with a case which was not exclusively triable by the Court of Session and I cannot, therefore, read in that observation the meaning that the principles which should govern the Court of Session in reversing an order of discharge in a case which is exclusively triable by Court of Session are precisely those by which it has to abide in passing orders in a case which is not exclusively triable by the Court of Session. The primary responsibility, in a case which is exclusively triable by the Court of Session, of ensuring that justice is done rests with the Court of Session and it is for this reason that the Code has given wide powers under Section 435 of examining the record of any ease which is exclusively triable by the Court of Session to the Sessions Judge or the District Magistrate. Obviously it is open to the Sessions Judge in a proper case where an accused person has been improperly discharged to examine the grounds upon which such order has been passed. No grounds upon which such order was passed were indicated by the learned Magistrate in the revision before me.
10. The next case upon which reliance was placed was that of Mt. Inoyia v. Harbans Prasad : AIR1933All482 . The accused in that case who had been discharged by the Magistrate after a prolonged inquiry had been prosecuted under Sections 147 and 304, Penal Code. Reference was made in that case to an earlier decision of this Court in which Knox J. had held that in a case exclusively triable by the Court of Session a Magistrate was not empowered to write a judgment and that all that he could in law do was merely to record reasons for a discharge. The view expressed by Kendall J. was that Knox J. had taken a somewhat narrowly restricted view of the functions of a committing Magistrate. Kendall J. in that ease expressed his agreement with the view of Daniels J. in Akbar Ali v. Raja Bahadur : AIR1925All670 . In that case the Magistrate had given his reasons for discharge in an order which occupied over 20 pages of typed script. It was because of the thorough, ness which had marked the Magistrate's order of discharge that Kendall J. came to the con-elusion that it could not be said that the Magistrate, had passed his order refusing to commit the accused for trial without rejecting the prosecution evidence as totally unworthy and the charge as groundless. It was because the Magistrate had definitely expressed the view that the evidence could not be accepted and had recorded his reasons for doing so that apparently Kendall J. came to the conclusion that the accused were not improperly discharged. As I read that case, recording of reasons by a Magistrate was the main consideration which weighed with Kendall J. in upholding the order of discharge passed by the Magistrate.
11. In Nazir Ahmed v. Emperor : AIR1934All944 , to which reference was also made, there had been an order of discharge of persons who were being prosecuted under Section 147, Penal Code. The offence under that section is exclusively triable by a Magistrate of the first class and the observations of Bennet J., that an order of discharge should only be set aside very sparingly and' only when it can be said either to be perverse or prima ' facie incorrect and there is a suggestion that any further evidence might be forthcoming, are not inconsistent with the view that in a case which is exclusively triable by a Court of Session, the Sessions Judge is entitled to look into the order of discharge for the purpose of examining whether on the evidence led by the prosecution there was a prima facie case against the applicants or not. It is only in cases where the Court of Session is satisfied that the evidence is untrustworthy that it might not interfere with an order of discharge. This view finds support from the case in Maung Htin Gyaw v. Maung Po Sein 14 A.I.R. 1927 Rang. 74. In this case, the High Court revised, at the instance of a private prosecutor an order of discharge made by a Magistrate, regard being paid to the fact that the accused did not suffer by way of prosecution and want of finality. It was held, on the facts of the case, that upon the evidence on the record there was a prima facie case for committal and that a further inquiry was also essential in view of the irregularities in the course of the inquiry.
12. The learned Sessions Judge has wisely refrained from making any comments upon the evidence which was produced by the prosecution before the Court of the inquiring Magistrate. I say wisely because any expression of opinion on his part might have prejudiced the trial. The order which the learned Sessions Judge has passed simply means that, in his opinion, there was a case for commitment and it must not be allowed to prejudice the trial of the case in any way.
13. For the reasons I have indicated above, this application in revision must fail. I accordingly dismiss this application. The stay order is discharged.