B.S. Somasundaram, J.
1. 23 persons Mirasdars and members of the Paddy Produce Association in East Thanjavur, were charge-sheeted before the Special Additional First Class Magistrate, Nagpattinam by the Inspector of Police, Crime Branch, Madras, for offence under Sections 147, 148, 323, 324, 325, 326, 307, 302 and 436 read with Section 149 of the Indian Penal Code, and also under Section 27 of the Arms Act. The charges arose out of a rioting, following by arson, shooting and murder etc. that occurred in ' Keela Venmani ' a village in Thanjavur District, on the night of 25th December, 1968. The learned Magistrate has discharged the respondent viz., accused Nos. 14, 15, and 16, on the ground that there is no evidence against them. The District Magistrate, who dealt with the matter in revision, has concurred with him, saying that the prosecution evidence disclosed merely the presence of these respondents in the crowd without any overt act. The State challenges the correctness of this discharge in this revision.
2. Under Section 207-A (6) of the Criminal Procedure Code where cases exclusively triable by a Court of Session are instituted on a police report, the Magistrate who conducts preliminary inquiry, can discharge the persons indicted, if in his opinion the evidence and documents disclose ' no ground ' for committing him. Sections 208 and 209 cover cases instituted otherwise than on a police report and in such cases he can discharge the persons charged, when he finds that there are not ' sufficient grounds ' for committing. ' The duty of appreciation of evidence in detail is that of the Court of Sessions, which alone his exclusive jurisdiction to try the offence, and in a case where the evidence is such that two different views are possible, the Magistrate should commit the case, because it deserves greater scrutiny and fuller investigation.' Vide Raghavan and Anr. v. Abbas and Anr. (1967) M.L.J. 738. True, it cannot be said that the Magistrate has no discretion to weigh the evidence at all. But there are limits to his discretion. It is not his duty to examine the prosecution evidence with meticulous care, balance the evidence of one witness against the evidence of another consider the probabilities and come to a conclusion on a doubtful point.
3. Mere presence in the crowed is not sufficient to make any person a member of an unlawful assembly; but at the same time, to make one a member of the unlawful assembly, it is not necessary that he should have done any overt act in pursuance of the common object. The only thing that is necessary is to find out whether the facts and circumstances warrant the conclusion that the person concerned shares the common object of the unlawful assembly. ' Common object' is different from a common intention and it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object.
4. So far as this case is concerned, it is not the case of ' no evidence ' or 'no grounds' as observed by the learned Magistrate. P.W. 17 has deposed that a crowed came to the Harijan Street, armed with sticks, flaming torches etc. and that in this crowd he saw the present respondents. The evidence of P.W. 2 is that he saw these respondents with sticks in that crowd which went north after setting fire to the houses in the street. P.W. 32 has referred to the presence of the first respondent with a stick in this crowd. P.W. 33 has seen them with sticks. Similar evidence has been given by P.W. 34. P.W. 15 has said that he has seen the 16th accused with a slick. Thus, it is not a case of ' no evidence,' but a case where there is some evidence which has to be scrutinised. Practically, there has been no cross-examination of these witnesses as regards the evidence given by them as against these respondents.
5. The case deserves greater scrutiny and fuller investigation by the Court of Sessions. The order discharging these respondents, is set aside. I direct a committal of these respondents for the offences, to stand their trial in the Court of Sessions, East Thanjavur, along with the other accused already committed by the learned Magistrate. This committal shall be made by the District Magistrate, Thanjavur at Kumbakonam. The Revision is allowed.