J.P. Mitter, J.
1. These Rules are directed against an order of commitment of the petitioners for trial under Section 302 read with Section 34 of the Indian Penal Code.
2. The petitioners Panchanan Ballav and Bibh-abati Ballav alias Bibha Ballav were respectively the husband and the mother-in-law of one Provabati Ballav, deceased. The petitioners along with Bibhuti Bhusan Ballav, a younger brother of Panchanan, were sent up by the police upon a charge of murdering the said deceased Provabati Ballav.
3. The case for the prosecution was that at about 4.30 a.m. in the early hours of the morning of June 2, 1957, Provabati was thrown down on the pavement by Bibhuti from the first floor verandah of the petitioners' house and that, as a result, the woman died. It was also the prosecution case that for a considerable time preceding the tragedy, the deceased, had been subjected to great cruelty and torture in which all the petitioners had participated.
4. The defence is that the deceased took her own life by jumping from the first floor to the pavement below and that prior to her death she had written a note to say that no one was responsible for her death. This note was found by the deceased's husband tied in a corner of her sari. According to the prosecution, this document had been wrested from her by the petitioners in order to fake a suicide.
5. On behalf of the petitioners it has been contended that there was no legal evidence before the Magistrate to warrant the commitment of the petitioners or any of them. So far as Bibhuti is concerned, there is direct evidence, for what it is worth, that he was seen throwing down the deceased from the first floor of the house to the pavement below. There are, besides, other circumstances to connect Bibhuti with the crime alleged.
6. Before we deal with the case of the other two petitioners, we would point out that Section 207A does not enjoin that there should be evidence in the proper sense to found an order of commitment. The section, as a whole, requires the Magistrate to consider not only the evidence called under Sub-section (4), but also the materials furnished by the documents referred to in Section 173 and to form his opinion if on such evidence and or such documents the accused should be committed for trial. The new procedure is designed to ensure expedition. Nevertheless, the requirement of a prima facie case for commitment is inherent in the section. If the evidence recorded under Sub-section (4) and the documents referred to in Section 173 disclose no grounds, that is, no prima facie case, the Magistrate's duty is to discharge the accused. If, on the other hand, the documents concerned and/or the evidence taken under Sub-section (4) disclose a prima facie case, it is the Magistrate's duty to make an order of commitment. The right to cross-examine conferred upon an accused and the provision as to his examination for the purpose of enabling him to explain any circumstances appearing in the evidence against him as well as the requirement that the Magistrate must record his reasons for discharging or committing the accused, as the case may be, clearly indicate that the Magistrate's opinion that the accused should be committed for trial is conditioned by the existence of a prima facie case against him. In dealing with the documents referred to in Section 173, the Magistrate must consider if the materials furnished can be translated into evidence at the trial. If, for instance, the statement of a witness was mere hearsay or the confession of an accused was made to a policeman, the Magistrate must disregard both in making up his mind whether there exists a prima facie case against the accused. What the Magistrate, under the new procedure, must do is to consider not only the evidence adduced before him, oral as well as documentary, but also whether the materials as furnished by the documents are capable of being transformed into evidence. If either the evidence or the documents or both make out a prima facie case, he must commit. If the evidence and the documents together do not make out a prima facie case, he must make an order of discharge.
7. As against Panchanan, the evidence was that although he should have been on duty at the Port Commissioners between 10.30 p. m. and 6 a. m., he was found absent between 1.30 and 3.30a.m. and he only turned up at 4 a. m. when ho asked for a torch. There was also evidence that he turned up at his house at 5 or 5.15 a. m. The post-mortem examination of the dead body revealed a number of injuries, some 48 hours old and some only a few hours old. The adult members of the family were the three petitioners. Then there was the evidence that Panchanan untied a knot at the corner of the deceased's sari and recovered the pencil note, but did not disclose its contents then and there. There was, lastly, a volume of circumstances pointing to Panchanan having tortured the deceased for a period prior to the tragedy. Certain letters written by the deceased to her father alleging diverse acts of cruelty were held inadmissible by the learned Magistrate and left out of consideration. In disposing of this application, we have not taken into account the said correspondence. Whether the said correspondence can be made use of by the prosecution, will be a matter for the Sessions Judge. We think that a prima facie case for Panchanan's commitment was also made out.
8. With regard to Bibhabati, we cannot say that a prima facie case under Section 302 read with Section 34 was made out, despite certain suspicious circumstances appearing against her. The evidence and the documents concerned, however, disclose materials which, when properly sifted, may well make out a case under Section 306 of the Indian Penal Code. However, the commitment of Bibhabati upon a charge under Section 302 read with Section 34 cannot be sustained and must be quashed.
9. In the result, we would allow Bibhabati's application and quash the relative order of commitment and dismiss the application of the two brothers Panchanan and Bibhuti.
10. Let the records be sent down as quickly as possible.
11. I agree.