Kanta Bhatnagar, J.
1. This revision petition has been preferred against the order of the learned Sessions Judge, Partabgarh dated February 12, 1973 by which he set aside the order of the learned Munsiff-Magistrate, Nimbahera dated September 13, 1972 discharging the accused-petitioner under Section 330, Indian Penal Code.
2. Briefly stated the facts of the case are that on December 13, 1972 Mangilal filed a complaint against the petitioner for the offence under Sections 342, 323, 330 and 506 read with Section 34, Indian Penal Code alleging therein that on December 20, 1972 he was called by Patwari, Nanana. When he reached the Patwarkhana, patwari Mohanlal and Tehsildar Dharampal Singh were present there who demanded Rs. 105/-, said to be due from him for the manure and on his expressing inability to make the payment at that time he was made to kneel down and he was slapped by the Tehsildar and the Patwari detained him. On this complaint being lodged a case under Section 330, Indian Penal Code was registered and the court proceeded with the case. The learned Magistrate by his order, referred to above, discharged the accused Aggrieved by that order the complainant went in revision and the learned Sessions Judge by the impugned order set aside the order of the learned Magistrate.
3. The learned Counsel for the petitioner has sternuously contended that the learned Sessions Judge has gone beyond his revisional jurisdiction in setting aside a well considered order of the learned Magistrate, who discussed the evidence and on being satisfied discharged the accused. The learned Counsel urged that the revisional courts are expected to be reluctant in interfering in the reasoned orders of the courts below and in the pit sent case the learned Sesssions Judge has not only interfered with the order of the learned Magistrate rather in an order directing further enquiry has gone to the extent that a prima facie case Under Section 323 and 342, Indian Penal Code is made out thereby leaving no scope for the learned Magistrate to make any further or apply his mind whether the case under these two sections is made out or not. The learned Counsel referred to certain authorities, which I will just discuss, to substantiate his arguments about the impropriety of the order of the learned Sessions Judge.
4. The learned Public Prosecutor contended that the argument about the revisional court being slow in interfering with the impugned orders applies equally to the jurisdiction of this Court and this Court should not go into the details of the order if the learned Sessions Judge rather should see whether there is any illegality in the matter or not Placing reliance on the case of M.R. Dhawan v. Partap Bhanu : 1978CriLJ769 the learned Public Prosecutor stressed that the Sessions Courts are well within their powers to order for commitment in cases where the Magistrate without going into depth of the matter discharged the accused. The learned Public Prosecutor agreed that the learned Sessions Judge has expressed certain opinion about the case in his order such as the witnesses being independent or not and has also given a definite opinion as to what cases are made out which he should not have done. But by that alone the order should not be set aside rather it may be observed that the Magistrate while complying with the directions of the learned Sessions Judge may not look in to that part of the order which deals with the appreciation of evidence of forming an opinion about the offences ex facie made out.
5. I heard the rival contentions and gave my anxious consideration to the material on record and studied the position of law. If the order of a Magistrate discharging the accused appears to be palpably wrong, erroneous or improbable the revisional court is well within its power to interfere with it. This is also the settled position of law that the Magistrates are expected to sift and assess the evidence from a view whether a prima facie case is made out in the case of not and not from the view whether the conviction can be based on that evidence or not In the case: Bheronlal v. Kuber singh : 1978CriLJ769 his Lordship was pleased to observe that if there is not even a remote possibility of conviction the accused should not be put to harassment by being ordered to be committed. Discussing the duties of the Committing Magistrates his Lordship in the case of Ganpat v. Chandra 1961 RLW 518 was pleased to observe that where the accused is discharged by the Magistrate, it is not proper for the Sessions Judge to direct commitment without examining correctness of the order. In the case of Azizuddin v. Emperor AIR 1939 Sindh. 71 their Lordship were pleased to enunciate the principle that a Session Judge should not usurp the jurisdiction conferred by law upon a Magistrate and should not interfere with a careful and fairly proper order of a Magistrate merely because the Sessions Judge takes a defecate view upon the evidence from that of the trying Magistrate, when the view taken by the Magistrate is reasonable in all circumstances of the case.
6. In the present case, being aware of the position of law that the principle to be kept in mind by a revisional court, that is, being slow in interfering with the orders of the courts below is applicable to this Court also while sitting in revision, I am still to see whether the learned Sessions Judge has kept this principle in mind or not. The learned Magistrate has carefully examined and appreciated the evidence on record, has also expressed the view about three days delay in filing the complaint and the learned Sessions Judge reappraised the evidence and came to a different conclusion and thereby set aside the order of discharge. I find full force in the argument of the learned Counsel for the petitioner that the two witnesses whom the learned Magistrate branded as not independent have been stated by the learned Sessions Judge to be independent and came to a definite conclusion as to what case is made out and thereby no scope is now left with the learned Magistrate but to comply with the direction that is to proceed with the presumption that a prima facie case Under Sections 342 and 323, Indian Penal Code, is made out against the accused. The argument of the learned Public Prosecutor that a particular portion of the order of the learned Sessions Judge being beyond his scope may not be looked into in itself impliedly suggests that the whole of impugned order is not justifiable. In my opinion, the learned Sessions Judge was over enthusiastic in discussing the matter and simply because he has, in the operative portion, directed the learned Magistrate to make further enquiry in the matter it cannot be inferred that he has acted as he under the provisions of law was expected to do. I would not have interfered in the order of the learned Sessions Judge if it would not have appeared to me that the appreciation of the evidence by the learned Magistrate was after properly weighing the testimony of the witnesses, and no prima facie case is made out from the statement of Mangilal alone because Sanwara and Bhima have not properly supported him. In such a case where three days delay is there in filing the complaint and the delay has not been properly explained; there is no medical report for the alleged injury, it can be easily said that there is any remotest possibility of the conviction of the accused. Hence I do not think it advisable to uphold the impugned order so as to bring harassment to the petitioner to face the trial in such a case. I, therefore, accept the revision petition, set aside the impugned order of the learned Sessions Judge and uphold the order of discharge of the accused petitioner passed by the learned Magistrate.