K. Ahmad, C.J.
1. This application in revision is directed against the order dated 24-12-64 passed by Sri M. J. Rao, Additional District Magistrate (Judicial), Cuttack, setting aside the order of discharge dated 28-4-64 passed in Case no. 157. C. I./64 by the S.D.M., Ken-drapara and directing the S.D.M. to frame the appropriate charge against the accused and to commit him to the Sessions Court.
2. The allegation made in the F.I.R. lodged on 12-1-64 by the opposite party was that on 7-1-64 at midnight some unknown person had set fire to his dwelling house in a part of which he had installed a rice-hauler causing damage worth Rs. 7000. The S.I. on investigation did not submit charge-sheet against the petitioner. Thereupon the opposite party filed a complaint petition on 25-9-64 before the learned S.D.M., Kendra-para against the petitioner resulting in the proceeding against him. At the trial the prosecution examined four witnesses including the opposite party as P. W. 1 who was admittedly present at the time of occurrence, and his son as P. W. 2 who claimed to have slept on the night of occurrence in that very house, though admitted that he was also not an eye-witness of the occurrence. The other two are said to be independent witnesses. P. W. 3 deposed to have seen the petitioner sprinkling something from a bottle on the fire, and P. W. 4 deposed to have seen him running away from the spot in the night of the occurrence.
3. The learned S.D.M. in an elaborate examination of their evidence, found that the witnesses were not reliable and that there was no prima facie case made out against the petitioner and therefore discharged him under Section 209(1) Cr. P.C.. Agamst this order there was a revision filed before the Additional District Magistrate (Judicial) who, as earlier stated, reversed that order and directed a further enquiry in the case. In the opinion of the learned Additional District Magistrate there is sufficient evidence in the case to warrant his commitment for trial under Section 436, I.P.C.
4. Section 209 Cr. P. C. enacts that the magistrate on complying with the formalities as stated therein, shall 'if he finds that there are not sufficient grounds for committing the accused person for trial, record his reasons and discharge him.'
5. The parties are at variance in regard to the ambit and scope of this provision of law and it is this what has led to the controversy raised in the petition under revision. The test laid down in this section to justify an order of discharge of an accused is obviously negative. In other words, discharge is permissible only when there are no sufficient grounds for committing the accused. It follows therefore that even in a case where sufficiency of grounds is doubtful, the proper order to be passed is one for commitment and not for discharge. To put it in other words discharge is warranted only when the absence of sufficiency of grounds is clearly established by the evidence on record. In order that the evidence on record may make out a case of absence of sufficiency of grounds it has to satisfy two conditions (1) that the evidence is not incredible, and (2) that if credible it does not give support to all the elements of the offence which is the subject-matter of the charge.
6. Now in judging the incredibility of the evidence the approach to be made is whether the witness deposing that evidence is not worthy of credit and whether what he states is not, in the circumstances of the case, improbable. If the conclusion come to from this point of view is that the witness is not unworthy of credit and what he deposes is not improbable it has to be held that one of the two requirements necessary for discharge is not present. Then the second point to be examined is whether the evidence though credible is on all elements essential to constitute the crime. Once it is found that it is so, the requirement of a prima facie case is established.
7. Thus the principle underlying the doctrine of discharge is that no case where the evidence is incredible or where the evidence is insufficient should be allowed to go to the Court of Session.
8. As such if the committing court finds that evidence is credible and is sufficient in the sense as stated above the committing court has no option but to commit the accused for trial. Therefore it is not correct to say that the committing court has no power to judge the credibility of the witness or to find out that the evidence if credible is sufficient to prove all the essential elements which go to constitute the offence under charge. In respect of both of these requirements however the approach of the committing court has to be negatived in the sense that what it has to find is that the evidence is not incredible or not insufficient, and not that whether the evidence given is credible and sufficient.
9. Recently the law relating to discharge came up for consideration before the Supreme Court in the case of Bipat Gope v. State of Bihar, AIR 1962 SC 1195 with this difference that the discharge in that case was given under Section 207-A, Cr.P.C. and not under Section 209 Cr. P.C. No doubt there is some difference in the wording of the two sections. But the difference, even if any, is more technical than substantial as is evident from the following observation made therein:--
'Whether the change of the language is deliberate or due to the fact that different draftsmen drafted the two sections, the test for discharging the accused must in a large way, be the same under both the sections, and it is hardly necessary to decide the full ambit of Section 207-A, and contrast it with that of Section 209. If there is any indication in the language, it is altogether on the side that the Magistrate must find a stronger case for discharging an accused under Section 207-A than under Section 209. But whatever the meaning of the two expressions, neither of them invests the Magistrate with the jurisdiction to decide the case, as if the Sessions trial was before him'
Therefore what has been stated above as to the test for justifying an order of discharge gets full support from this weighty observation made by the Supreme Court.
10. Now in the present case the finding given by the committing court on the question of credibility of the evidence is that 'the evidence of P. Ws. 3 and 4 are unworthy of credit and the story that they are giving has been cooked up subsequently'. If this finding given by the committing court is to be held as correct, there is no escape from the conclusion that the evidence given in the case is incredible and therefore the ground is not sufficient for committing the accused.
11. No doubt in the order under revision there is an elaborate discussion made by the learned Additional Magistrate in regard to the authorities on the subject but there is no finding come to by him that the aforesaid finding of the committing court namely, that the evidence of P Ws. 3 and 4 are unworthy of credit 'suffers from any illegality or perversity as contemplated in law' What has only influenced the learned Additional Dt. Magistrate in reversing the order is that the discussion made by the committing court in regard to the credibility of the evidence is rather more elaborate than it should have been without going further whether the discussion made was confined to the consideration that the evidence was not incredible or that it extended also to the consideration, that if credible it proved the guilt. If the committing court in giving the aforesaid finding regarding P. Ws. 3 and 4 approached the evidence from the negative point of view as just stated that finding cannot be said to have been arrived at in a manner not contemplated under Section 209 Cr. P.C. Unfortunately the learned Additional District Magistrate had nowhere, in the course of his discussion come to a finding that the approach made by the committing court was not such. Therefore the order of reversal passed by the learned Additional District Magistrate cannot be supported in law.
12. Accordingly the application isallowed. The order in revision is setaside and the rule is made absolute.