J.P. Mitter, J.
1. This is a petition for revision of an order of the learned Additional Sessions Judge, Midna-pore, whereby he set aside an order of discharge under Section 209 of the Code of Criminal Procedure and directed the petitioners' commitment to the Court of Session on a charge Under Section 366 of the Indian Penal Code.
2. The only question for decision is whether in view of the evidence and all the surrounding circumstances of the ease the learned Magistrate's order of discharge of the petitioners was a proper one. It has been argued by Mr. Mukher-jee i'or the petitioners that Ss. 209, 210, 211 and 213 of the Code of Criminal Procedure clearly show that the learned Magistrate had jurisdiction to come to his own conclusion as to the credibility of the evidence before him and that if he was minded to disregard that evidence and to hold that no charge could be framed thereupon, the order of discharge could not be assailed. Mr. Mukherjee further argued that the Magistrate's duty does not end whenever there appears to be a prima facie case, in other words, that the learned committing Magistrate has power to scrutinise the evidence and, if satisfied that the same is unworthy of belief, to discharge the accused. Mr. Mukherjee cited certain authorities in support of his contention but at the same time conceded that there were numerous other conflicting decisions.
3. It is unnecessary for us to review the judicial decisions on the subject of what should be the duty of a Committing Magistrate and to lay down any precise proposition relating to his duty. It is clear however that in the exercise of his powers under Section 209, Criminal P. C., no committing Magistrate should usurp the function of the jury. As to that, in our view, there can be no dispute. One might go further than this and say that if the evidence adduced admits of a different conclusion to that which the learned Magistrate has come to, it would be his duty to send the case to the jury. There could however be a case in which the evidence is such that no conviction could in any circumstance follow. Such a case should of course be never sent to a :jury.
4. In giving his reasons for discharging the petitioners the learned Magistrate criticised the evidence led on behalf of the prosecution and came to the conclusion that the evidence was not such as to justify a charge being framed against the accused persons. This may be taken to mean that he disbelieved the prosecution case and that he therefore did not think that a charge could be framed under Section 366 of the Indian Penal Code. The learned Sessions Judge considered the same evidence with a certain amount of care and came to the conclusion that it was equally consistent with a case under Section 366, Penal Code. Some of the reasons given by the learned Magistrate for disbelieving the witnesses did not appeal to the learned Sessions Judge. In our view, the learned Sessions Judge was right in setting aside the order of discharge and in directing the petitioners' commitment on a charge under Section 366 of the Indian Penal Code.
Reverting to the reasons given by the learned Magistrate for disbelieving the evidence of some of the witnesses, we feel bound to say that they were not good grounds for rejecting the evidence. As to the evidence of Gopi and Kedar, the reason offered by the learned Magistrate for its rejection was that the said witnesses had been involved in some criminal case. It is not however stated whether the prosecution of the said witness ended in any conviction. Another ground mentioned by the Magistrate was that the witnesses Kedar and Biren had been in police custody together and that they were therefore 'birds of the same feather', without mentioning any of the circumstances leading to such incarceration. We mention all these to emphasise thata different view on the facts might be taken by another tribunal. In our view, in all the circumstances of this case the order of discharge was an improper one and the order setting aside the said order of discharge must therefore stand.
5. The order of the learned Sessions Judge directing the petitioners' commitment must stand.
6. The Rule is accordingly discharged.
7. I agree.