S.M.N. Raina, J.
1. This is a petition under Section 439. read with Section 561A of the Code of Criminal Procedure (hereinafter referred to as 'the Code').
2. The petitioners and 15 others-were prosecuted for offences under Sections 302 and 201 read with Sections 120B' 148 of the Indian Penal Code. After holding an enquiry into the matter, the Magistrate committed the petitioners to the Court of Session for trial alone with two-others namely. Dayaram and Bodhan on charges under Sections 302, 148 and 201 of the Indian Penal Code. The petitioner filed a revision petition in the Court of Sessions against the order of commitment; but it was dismissed. They have therefore, filed this petition.
3. At the hearing of this petition learned Counsel for the petitioners pressed the case of only three petitioners namely. Itwari. Kanhaiya and Bhawar Singh. on the ground that their commitment on the aforesaid charges was illegal as they were not founded on any evidence against them.
4. There can be no doubt that since the commitment was under Section 207A of the Code. Section 215 of the Code would not be applicable; and it is open to the High Court to quash the commit-ment in exercise of its revisional powers. In State of Madh Pra v. Prahlad 1962 MPLJ (Notes) 235 it was held that it is open to the High Court to quash any commitment made under Section 207A of the Code in exercise of its revisional powers on the grounds of fact and law.
5. Sub-section (6) of Section 207-A of the Code lays down that if the Magistrate, after taking the evidence referred to in Sub-section (4) and considering all the documents referred to in Section 173 of the Code and examining the accused is of opinion that such evidence and documents disclose no grounds for committing the accused person for trial, he may discharge the accused for reasons to be recorded by him. It is clear from the aforesaid provision that the accused should be discharged only if the evidence and the documents disclose no grounds for committing the accused person for trial, In other words commitment would be justified where the Magistrate finds that there is some evidence against the .accused, which if believed, would war-rant his conviction. In Jagdish Prasad v. State of Madhya Pradesh 1970 Jab LJ (Note) 14 it was held by this Court that the committing Magistrate can commit an accused to stand his trial before the Court of Session only if there are sufficient grounds for the same, and sufficient grounds mean that there is evidence on record which, if believed would prima facie make out the charge levelled against the accused. I entirely agree with this view. I would however like to add that in this context evidence means and includes the documents referred to in Section 173 of the Code.
6. In the instant case it appears that Hirasing was the solitary eye-wit-ness. In his statement before the police under Section 162 of the Code he had implicated the petitioners; but he did not support the prosecution story when examined before the committing Magistrate. The contention of the learned Counsel for the .petitioners is that in view of the statement of Hirasing in Court his statement before the police should be completely ignored; and if that is ignored the rest of the evidence is not sufficient to justify the commitment of the accused for trial. In Shri Ram v. State of Maharashtra : 2SCR890 it was laid down that the Magistrate has jurisdiction to discharge or commit an accused for trial merely on the basis of the documents referred to in Section 173 of the Code. The statement of Hira Singh recorded under Section 162 of the Code is. no doubt document referred to in Section 173 of the Code; but once Hira Singh was examined as a witness in Court on oath his earlier statement before the police loses all its meaning and significance, particularly because it was not made on oath. So long as the witnesses are not examined in Court their statements before the police can be considered by the committing Magistrate for purposes of commitment; but once they are examined in court on oath, their statements before the police are virtually superseded by their statements on oath in court. Their statements before the police must therefore be excluded from consideration and the question should be examined on the basis of the rest of the material on record. The matter must therefore be examined on the basis of the other documents referred to under Section 173 of the Code.
7. I. therefore proceed to consider Whether. after excluding the evidence of Hira Singh there is any evidence which if believed would sustain the charge against the three (Petitioners namely Itwari Kanhaiya and Bhawar Singh. I need not consider the case regarding the other three petitioners because there is circumstantial evidence against them and for this reason their case was not pressed before me by the learned Counsel. There appears to be no circumstantial evidence against the petitioners Itwari. Kanhaiya and Bhawar Singh. As for the statement of Bodhan recorded under Section 164 of the Code it may be of some value against the maker himself but so far as these petitioners are concerned it cannot be made the sole foundation of a charge in the absence of other evidence. Thus, there appears to be no material on record to justify the commitment of these three petitioners namely. Itwari. Kanhaiya and Bhawar Singh. and their commitment is hereby quashed.
8. The revision petition is therefore partly allowed. Commitment of the petitioners Itwari. Kanhaiya and Bhawar singh is hereby quashed. Commitment of the others is maintained.