Abdul Hakim Khan, J.
1. The facts leading to this revision are that the accused Keshavrao Ingle, Sub-Inspector of Police in-charge of Kalapipal Police Station, after collecting a few constables from his as well as other stations, made a raid upon village Amarsingh at about midnight of 17-6-1954 in search of Jairam Bhopa, who was suspected of having stolen some property.
On reaching the spot, he surrounded the huts and then enquired of the inmates about the whereabouts of Jatram Bhopa. One person from the hut began to move away, whereupon the Sub-Inspector challenged him and thinking that he was Jairam said 'Jairam, do not try to run away'. It is said that Prabha Shankar constable was handed over the revolver by the Sub-Inspector and was asked to shoot.
Prabha Shankar, in obedience to the orders of his superior fired at the man, who was injured and he died eventually. It was later on discovered that the man, who was killed was not the person wanted by the Police. The Police challaned the Constable Prabha Shankar and Sub-Inspector Kheshavrao ingle under Section 302, I.P.C.
2. The Sub-Divisional Magistrate, Shujalpur, Mr. Deshmukh framed a charge against both the accused but later on under Section 213, Criminal P. Code cancelled the charge against accused Keshavrao Ingle & discharged him. The constable Prabha Shankar was, however, committed to Sessions and the trial Court, convicting him under Section 304 para 2, Penal Code, sentenced him to four years rigorous imprisonment.
Against his conviction and sentence by the Sessions Judge, Prabha Shankar filed an appeal, which was allowed by me and the accused was given the benefit of exception under Section 79, Penal Code. In the course of the appeal, from the record I learnt that the Sub-Divisional Magistrate had discharged the accused Keshavrao Ingle and that a revision against that order was disallowed by the Sessions Judge.
To me it appeared that prima facie there was a case against the Sub-Inspector, Keshavrao Ingle and that the Committing Magistrate had erred in cancelling the charge. I, therefore, issued a notice to the Sub-Inspector to show cause why the order of discharge should not be set aside and he be directed to be committed to the Court of Session to stand his trial.
3. Without discussing the evidence, it is enough to say that there are two sets of evidence in this case against the accused: First, the evidence of those who accompanied the Sub-Inspector, namely, the Police Constables and secondly, the evidence of villagers, who saw the tragedy being enacted. The witnesses who belonged to the Police force have given a version of their own and the statements of the villagers are to the effect that the Sub-Inspector ordered the constable to shoot.
Thus there exists some conflict. The question before me, however, is: how far the Magistrate was competent to assume the jurisdiction of the Sessions Judge and whether in the presence of conflicting evidence, he was competent to believe one set of evidence and discard the other? Now let me say at the very outset that it is not always easy to describe the limits within which a Committing Magistrate can pass an order of discharge under Section 213, Criminal P.C.
But a long line of judical decisions has broadly indicated the extent of the Committing Magistrate's jurisdiction. I refer to the observations of Sulaiman J. in - 'Akbar Ali v. Raja Bahadur' AIR 1925 All 670 (A), which appear to me to furnish guidance on the point. The learned Judge observed:
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 is innocent'. This, however, does not mean that the Magistrate is to arrogate to himself the functions of the Sessions Court and try the case as if he were that Court himself.
The policy of the legislature seems to be that serious offences, should be tried by the Sessions Judges-who are ordinarily more experienced. The Magistrate has to see whether there are sufficient grounds for commitment or not. If he is satisfied that the evidence is altogether untrustworthy and not fit to be acted upon, he may discharge the accused. He should not, however, try to weigh the probabilities of the case and then after balancing the evidence on both Bides decide. whether the guilt of the accused has or has not been conclusively proved.
4. In - 'Emperor v. Allah Mahr. AIR 1927 All 279 (B), Walsh J. divided such cases into three categories. I regard his judgment to be a lucid exposition of the law on the point under consideration. The three categories are the following:
5. First, a case where the evidence is prima faice so clear that nobody can entertain any doubt that the matter ought to be tried.
6. Second, a class of cases where the evidence is palpably tainted and so absurd and incredible that nobody could doubt it and that it would be a hardship to allow the matter to go on any further.
7. The third category of case is one which provides debatable grounds, where the evidence is conflicting and lays itself open to suspicion, bat where it may be true and may commend itself to certain tribunals. In this class of cases, even though the Magistrate may have reason to doubt whether if he were trying the case, he would convict, he has no right to substitute his judgment for the final judgment of the Court indicated by law for the trial of the case.
8. This present case obviously falls in the third category, because the evidence is conflicting. Without expressing any opinion as to what weight should be given to the evidence on re-cord, I. am quite clear in my mind, that the Committing Magistrate in this case travelled beyond his province in. assessing debatable evidence and discharging the accused.
If is precisely in cases like the one before me, where the limitations of the Committing Magistrate are so clear. He should not have played the role of the Sessions Judge and he should have left the case to the Sessions Judge to determine which of the conflicting get of evidence is to toe believed or not believed.
9. The learned Counsel for the accused, Keshavrao Ingle has referred me to - 'Balwant gingh Ghasiram v. Baldeo Singh Thobansingh' AIR 1954 Madh-B 86 (C), and - 'Kalipada Dalai v. The State' : AIR1955Cal470 . But both the above cases are not to the point. In 'AIR 1954 Madh-B 86 (C)', my Lord the Chief Justice considered 289, Criminal P.C. But the question in this revision relates to Section 213 of the Code. As for the Calcutta case, it is wide of the mark, because what was considered in the case was extent of revisional jurisdiction under Section 439 when the accused was actually tried by a competent Court and sentenced by the trial Court.
On appeal the conviction was maintained, but the sentence was reduced. Against this a revision was preferred before the Calcutta High Court, and it refused to interfere in revision. This Calcutta case has not the remotest bearing on the one before me; the two are poles asunder.
10. The learned Counsel for the accused has last of all argued that where the principal accused (Prabha Shankar) has been acquitted of murder, Keshavarao Ingle cannot be charged with abetment. But this argument has no force, because according to Expln. 3 of Section 108 I.P.C. it is not necessary that the person abetted should have committed the offence and punished, and IIIst. (d) to the Explanation is quite clear on the point.
11. In the course of arguments some doubt appears to Rave been expressed as to the powers of the High Court to set aside the order of discharge and direct the committal of the accused for trial. But there is no lack of authorities, which support the order which I propose to pass in this case. I shall first refer to - 'Public Prosecutor v. Ponnuswami Nayak AIR 1928 Mad 1267 (FB) (E), in which a Pull Bench of the Madras High Court laid down that
Section 439, Criminal P.C. confers on the High Court power granted to a Court of Appeal by Section 423 and one of the powers so granted is that of directing an accused to be committed for trial
In. - Emperor v. Varjivandas' 27 Bom 84 (F) it was observed that
Under Sections 439 and 423, Criminal P.C. the High Court has jurisdiction to set aside an order of discharge passed by a Presidency Magistrate if such preliminary be necessary, and to direct that a person improperly discharged of an offence be arrested and forthwith committed for trial
In - 'Empress v. Ramlal Singh' 6 All 40 (G) Straight J. held that
The High Court has power under Section 439, Criminal P.C. 1882, if it considers that an accused person has been improperly discharged, to order him to be committed for trial.
12. For reasons stated above, I set aside the order of discharge dated 2-7-1954 passed in file No. 99 of 1954, and also the order of the Additional Sessions Judge, refusing to interfere. I direct the Sub-Divisional Magistrate, Shujalpur to commit the accused to stand his trial before the Additional Sessions Judge, Shajapur, under Section 302 read with Section 109 I.P.C. or in the alternative under Section 304 read with Section 109, I.P.C.