D.N. Das Gupta, J.
1. These two Revisional petitions are directed against the order of the learned Additional District Magistrate, Midnapore, setting aside the order of a Magistrate discharging the accused persons in an enquiry under Chapter XVIII of the Code of Criminal Procedure, and directing the learned Magistrate to commit the accused persons to the Court of Session.
2. The complainant's case is that Surendra Kamilya, Upendra Kamilya and Jogendra Kamilya were three brothers, that accused petitioners Ram Chandra Kamilya, Lakshman Chandra Kamilya, Satrughna Kamilya and Santosh Kamilya are the sons of late Upendra Kamilya, that accused petitioners purna Chandra Kamilya, Pulin Kamilya, Nalini Kamilya and Anil Kamilya are the sons of late Jogendra Kamilya and that the complainant Katyayani Kamilya is the widow of Surendra Kamilya. Surendra lias got no soil; his three daughters named Jahnabi, Basanti and Joyanti are married; he died on the 4th May, 1960. On the night of the 18th Baishakh, 1367 B.S., corresponding to the 1st May, 1960, he was carried by the abavementioned accused persons on their arms to their house when his condition became serious (he had been suffering for come time past from tuberculosis). He died in the house of those accused persons on the 21st Baishakh, 1367 B. S., corresponding to the 4th May 1960. The prosecution case is that Surrender Kamilya was taken to the house of the accused persons for the purpose of causing him to execute a deed of conveyance in respect of certain landed properties and that the accused persons got a false document executed by him. Sometime thereafter on We anovenamed widow's suspicion being roused she asked her eldest son-in-law to make enquiries and then came to learn that the accused persons made Surendra execute a false document although he was then in an unconscious condition. The document was caused to be executed on the 3rd May, 1960, corresponding to the 20th Baishakh, 1367 B,S. and it was registered on the same day.
3. Accused petitioner No. 9 Narendra Jana is the scribe of the impugned document and accused petitioner Rajani Kartta Patra is the attesting witness to the document. This abovementioned accused persons are the petitioners in I Revision Case No. 835 of 1961. In the offers Revisional case, namely, case No. 834 of 1961 Renupada Dutta who; is a clerk in the office of the Sub-Registrar and who was sent by the Sub-Registrar for the purpose of having the document registered on commission is the petitioner,
4. The defence case is one of complete denial. The case of accused Narendra Jana, Renupada Datta and Rajani Kafita Patra is that they are not guilty. The case of the other accused petitioners, namely, the nephews of Surendra is that Surendra suffered from Tuberculosis for about two years and died on the 4th May, 1960, at about 8 O'clock in the morning at the house of his nephew Puma where-he was staying from the end of the month of Flagon or the beginning of Chaitra, 1366 B.S. as he was not being properly looked after in his own house. The nephews made arrangements for his treatment and looked after him. He was treated by one Dr. Annada Charan Das, Medical Officer of the Charitable dispensary at Balishai. Petitioner Puma who Is a Kaviraj' also looked after Surendra. Being satisfied with the nursing of the nephews and with the arrangements made by them for his treatment he executed a deed of gift in respect of a portion of his 'bastu' in favour of the abovementioned eight petitioners (nephews), the area of the property being about 1.70 acres. On the same day Surendra executed another deed of gift in favour of one Radhal Shyam Das as. the shebait of the deity of-Kan-chaneshwarj Mahadeb Jeu. As Surendra was very weft and as his hands were trembiing at the time of execution of the document he could not sign and, therefore, put his thumb impression on the impugned document which was voluntarily: executed by him.
5. The prosecution examined 11 witnesses which the defence examined 3 witnesses, After considering the evidence of the witnesses the learned Magistrate came to the conclusion: that the, prosecution witnesses were not trustworthy, that .they could not be relied upon and also that there were not sufficient grounds for committing the accused persons to the Court of Session. In that view of the matter the learned Magistrate discharged all the accused persons Under Section 209 of the Code of Criminal Procedurej There was an application before the learned Additional District Magistrate, Midnapore, Under Section 43b of the Cole of Crimfnal Procedure. The learned Additional District Magistrate set aside the order of discharge made by the learned Magistrate and directed the Magistrate to commit the accused persons to the Court of Sesscn. He did not frame the charge under which the accused were to be tried nor did he indicate in his order under what section the accused were to be committed.
6. Mr. Dutt appearing on behalf of the accused-petitioners tips raised the following contentions:
First the learned Additional District Magistrate was under a [misconception about his functions Under Section 437 of the (lode of Criminal Procedure and also of the functions of the committing Magistrate under Chapter the of the Code; the Additional District Magistrate could only interfere if he came to the conclusion that the Magistrate had committed a material error in discharging the accused or had illegally or improperly underrated the value of the evidence:
secondly, the learned Additional District Magistrats in exercising his powers Under Section 437 had to decide what offence was prima facie committed by the accused persons after a proper consideration of the evidence and the circumstances, and that the learned Additional District Magistrate had failed to do so;
thirdly, there is no evidence on the record for committing the accused persons to the Court of Session Under Section 467 of the Indian Penal Code or under any other section; according to Mr. Dutt this is a case of 'no evidence';
lastly, both the complainant and the accused persons had examined witnesses and the committing Magistrate had jurisdiction and was within his rights to decide witnesses of which party were trustworthy and reliable.
7. On the other hand Mr. Mookerji appearing for the opposite party contends that the powers of a Magistrate acting under Chapter XVIII of the Code of Criminal Procedure are very limited indeed, that he cannot weigh the evidence of the witnesses, that the committing Magistrate has no power to decide whether a particular witness is trustworthy or,' in other words, whether the witnesses can be believed or not and all that the committing Magistrate can do is to consider whether there is a 'prima facie' case against the accused and if he is so satisfied, then lie has no alternative but to commit the accifssd persons for trial to the Court of Session.
8. It is necessary to refer to certain decisions which have been placed before me before I consider the legality, correctness or propriety of the judgment of the Additional District Magistrate and also the merits of the case, namely, whether there is any prima facie evidence for committing the accused to the Court of Session or in other words whether the learned Additional District Magistrate was justified in law and also on the facts in setting aside the order of discharge made by the learned Magistrate.
9. Mr. Dutt relies mainly on two recent decisions of the Supreme Court, one, Ramgopal Ganpatrai Ruia v. State of Bombay : 1958CriLJ244 (decided on the 8th October,' 1957), and the other Pramn-tha Nath v. Saroj Ranjan Sarkar : AIR1962SC876 (decided on the 21st December, 1961). In the former case Sinha, J. (as he then was) alter referring to the decision in the case of Lachman v. Juala ILR 5 All 161 observed as follows:
Though the Code of Criminal Procedure was several times substantially amended after the date of that decision, the basic words 'sufficient grounds' have continued throughout. That decision was approved by a Division Bench of the Bombay High Court in In re, Bai Parvati, ILR 35 Bom 163, and the observations aforesaid in the Allahabad decision were held to be en accurate statement of the law as contained in Section 209 of the Code, as it now stands. The High Court of Bombay held in that case that where the evidence tendered for the prosecution is totally unworthy of credit, it is the duty of the magistrate to discharge the accused. It also added that where the magistrate entertains any doubt as to the weight or quality of the evidence, he should commit the case to the Court of Session which is the proper authority to resolve that doubt and to assess the value of that evidence.
Those observations were quoted with approval in the second case, namely, the case of : AIR1962SC876 . in which case the expression 'no sufficient ground for proceeding' in Section 203 of the code of criminal Procedure arose inter alia for decision. In delivering the majority judgment of the Supreme Court Kapifr, J. observed as follows:
In the circumstances- the order made by the previous Chief Presidency Magistrate was not in any manner manifestly absurd, unjust or foolish, nor can it be said that the Magistrate ignored any principles which were necessary to apply Under Sections 202 and 203 of the Criminal Procedure Code nor is the order contrary to what was said in : 1958CriLJ244 . That was a case in which the rule in regard to commitment proceedings and the power of the Committing Magistrate to commit was discussed and the expression 'sufficient grounds' in Sections 209, 210 and 213 of the Code of Criminal Procedure was interpreted. That was not a casa dealing with the powers of the Magistrate under Sees. 202 and 203 which was specifically raised and decided in Vanilla Panchal v. Dattatraya Dulaji : 1SCR1 .
His Lordship then quoted with approval the observations of Sinha, J. in : 1958CriLJ244 .
10. In the case of ILR 5 AIT 161 which was decided on the 15th September, 1882, Mahmood, J. observed ?s follows:
The object of the law in providing that the inquiry shall be held by the Magistrate before the accused has to undergo a trial in the Court of Session, seems to be to prevent the commitment of cases in which there is no reasonable ground for conviction. This provision of the law is calculated, on the one hand, to save the subjects from prolonged anxiety of undergoing trials for offences net brought home to them; and, on the other hand, to save the time of the Court of Session from being wasted over cases in which the charge is obviously not supported by starch evidence as would justify a conviction. Taking this view of the law, I am of opinion that the power given to Magistrates Under Section 195 extends to weighing of evidence, and the expression 'sufficient grounds' must be understood in a wide sense. must not, however, be understood to lay down that this discretionary power should be exercised by the Magistrate without due caution, or that he should take upon himself to discharge the accused in Sessions cases in the face of evidence which might justify a conviction. But when the evidence against the accused is such that, in the opinion of the Magistrate, it cannot possibly justify a conviction, I hold that there is nothing in the law which prohibits the discharge of the accused, even though the evidence against him consists of witnesses who state themselves to be eye-witnesses, but whom the Magistrate entirely discredits. This bsing so, I could interfere in revision only, if, on considering the evidence produced on behalf of the prosecution, I cams to the conclusion that the Magistrate had made a 'material error' in discharging the accused, or had illegally and improperly underrated the value of the evidence.
11. It seems to be well settled now that the Maglstrate has the power to weigh the evidence and to see whether a witness is credible or not, whether a witness can be believed or not, not for the purpose of seeing whether a conviction may result after trial but for the purpose of seeing whether there are sufficient grounds for committing an accused person to the Court of Session. Mr. Mookerji argues that the Allahabad case was a case when the Code of Criminal Procedure, Act X of 1872 was in force and there being subsequent amendments of the Code the Allahabad decision can be an authority under the prosiest Code in view of the difference in the language in the different amendments. Section 196 of the Code of 1872 which has been read by Mr. Mookerji is quoted below:
When evidence has been given before a Magistrate which appears to justify him in sending the accused person to take his trial for an offence which is triable exclusively by the Court of Session or High Court or which n the opinion of the Magistrate is one which ought to be tried by such Court the accused person shall be sent for trial by such Magistrate before the Court of Session or High Court, as the case may be.
12. Mr. Mookerji points out that in the corresponding provision, namely, Section 226 of the Code of Criminal Procedure (Act XXV of 1861) there was a difference in the language and the difference was that the accused was to be committed when the evidence appeared to be sufficient for the conviction of the accused person.
13. In the present Code the corresponding provision which is laid down in Section 210 (1) is quoted below.
When upon such evidence being taken and such explanation (if any being made) the Magistrate is satisfied that there are sufficient grounds for committing the accused for trial, he shall frame a charge under his hand declaring with what offence the accused is charged.' These amendments were taken into consideration by His Lordship in delivering the judgment in the case reported in : 1958CriLJ244 . His Lordship pointedly observed, 'Though the Code of Criminal Procedure was several times substantially amended after the date of that decision, the basic words 'sufficient grounds' have continued throughout.
14. Mr. Mookerji has referred to certain decisions. It is necessary to refer to the observations of 3ose, J. in the case of Tara Singh v. The State : 2SCR729 (decided on the 1st June, 1951). Bose, J. observed at page 736 (of SCR) : (at p. 5144 of AIR):
All that he '(the committing Magistrate)' had to consider was whether Under Section 209 (1) there were sufficient grounds for committing the appellant for trial and not whether, on an appreciation of the whole evidence and other material in the case, including witnesses for the defence, the charge against him was proved.
Mr. Mookerji has also placed before me the case of Sm. Gurai Bewa v. Narayan Prosad Jana AIR 1954 a 531 (decided on the 4th February, 1953). In delivering -the judgment J. P. Mitter, J. sitting with Sen, J. observed as follows:
The only question for decision is whether in view of the evidence and all the surrounding circumstances of the case the learned Magistrate's order of discharge of the petitioners was a proper one. It has been argued by Mi. Mukherjee for the petitioners, that Sections 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 midi and that if he was minded to disregard that evidence cud to hold that no charge could be tramea tnereupan, me 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 ware numerous other conflicting decisions.
After stajing Mr. Mukherjee's contention in the-judgment J. P. Mitter, J. proceeded to observe,
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 (elating to his duty. It is clear however that in the dxercise of his powers under Section 709 Criminal P. C. no i committing Magistrate should usurp the function of the jury. As to that, in our view, there can be no dispute. I One might go further than this and say that it 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.
15. All, that J. P. Mitter, J. decided was that If two views on j the evidence were possible, then it was the city of the Committing Magistrate to commit the accused to the Court of Session; but at the same time Mitter,. added that if there was a case in which the evidence was such that no conviction could follow then such a cas3 should not be sent to the jury. Mitter, J. did not lay down that under no circumstances could the Committing Magistrate weigh the evidence or consider the credibility of the witnesses.
16. Appearing on behalf of the State Mrs. Maltra has placed before me the decision in the case of Khushi Ram v. Hashim 1959 Cri LJ 658 : AIR 1959 SC 542, which seconding to Mrs. Maitra clearly lays down the powers end functions of a Committing Magistrate. After going through this judgment it does not seem that this applies to the 'acts of the instant case.
17. In short the recent Supreme Court decisions in the case of : AIR1962SC876 and also in the case of : 1958CriLJ244 are authorities for the proposition that where the evidence tendered for the prosecution its totally unworthy of credit, it is the duty of the Magistrate to discharge the accused and that where the Magistrate entertains any doubt as to the weight or quality of the evidence, he should commit the accused to the Court of Session which is the proper authority to resolva that doubt and to assess the value of that evidence. Coming to the judgment of the learned Additional District Magistrate it appears that no exception can tie taksn to the point of law as formulated by him so far as it goes, Though it is admittedly true that the committing Courts are not mere post offices to transmit each and every case to the Court of Session, it is not at the sama tima desirable that the committing Magistrate should usurp the function of the Judge and the jury by examining the evidence Inch by inch. No doubt, the lower Courts are to screen out cases where the prosecution has hopelessly failed to establish a prima facie case but where there is reasonable doubt as to whether the prosecution story is to be believed or not, it is better that the committing Magistrate sends the case to the Court of Session for taking a decision.' But he seems to have come to the finding that there is a prima facie case without properly considering the evidence of the witnesses and the circum-stances of the case. The learned Additional District Magistrate is not right in thinking that the committing Magistrate had any reasonable doubt as to whether the1, prosecution story was to be believed or not; on the other hand the order of the committing Magistrate shows that ha had no doubt whatsoever in his mind regarding the credibility of the prosecution witnesses and also1 regarding the point as to whether there was any legal evidence on the record from which he could come to a conclusion that there was a prima facie case against the accused Under Section 467 of the Indian Penal Code or under any other section. This aspect of the matter was not properly considered by the Additional District Magistrate. The enquiring Magistrate has given cogent reasons as to why he considers the evidence of the witnesses, witness by witness, untrustworthy. I have been taken not only through the judgments of the two learned Magistrates but through the whole of the evidence adduced on behalf ' of the prosecution and also on behalf of the accused. The learned Magistrate did consider the circumstances, on which the prosecution relies, in the absence of satisfactory oral evidence, namely, that Surendra Kamilya was taken to the house of the accused persons on the 1st May, I960, that the stamp was purchased on the following day, that the impugned document was executed on the 3rd May, I960, and that Surendra died on the 4th May, 1950. There is some little dispute about the hour of his oaten who the prosecution case is that he died sometime before dawn, the accused's case is that he died at about 3 O'clock in the morning, a difference of a few hours.
18. (His Lordship considered the evidence on merits and- proceeded.).
19. In these circumstances, the learned Additional District Magistrate was not right in setting aside the order of the learned enquiring Magistrate who was perfectly justified in considering the credibility of the witnesses and also in coming to the decision that there was no evidence or In other words, there were not sufficient grounds for committing the petitioners to the Court of Session for trial.
20. It has been argued before me by Mr. Dutt that three of the eight nephews of Surendra are minors. I find from the order-sheet that after the nephews of Surendra appeared in Court the learned Magistrate had some doubts about the age of petitioner Anil and petitioner Nalini and, therefore, he called for a Medical Certificate which was never produced in Court. It appears from the statements of the accused Under Section 342 of the Code of Criminal Procedure that petitioner Anil is about 11 years old and that petitioner Nalint is about 13 years old. I think this natters escaped the notice of the learned Additional District Magistrate, If Anil was really below 12, then the learned Additional District Magistrate should have considered whether he had, attained sufficient maturity, in any case the learned Additional District Magistrate should not have directed the two petitioners, namely, Anil and Nalini to be committed to the Court of Session.
21. It is also not a little remarkable that Renupada Dajta who is an employee in the office of the Sub-Registrar was also made an accused. At least I do not find anything on; the record from which it can be said that I19 is in any way connected with the impugned transaction. The widow of Surendra has said that Renupada Datta did not come to the house of Surendra Kamiiya. But Surendra was not in her own house at the time when the document was executed; he was in the house of his nephews where he was being treated by petitioner Puma who is a Kaviraj and; also by some other physician. Therefore, it cannot be inferred from the evidence of the complainant that Petitioner Renupada Datta never went to the house where Surendra Kamiiya was lying ill. There is no evidence whatsoever against Renupada Datta.
22. The learned Additional District Magistrate did not;consider the case of each of these-accused persons separately nor did he consider the evidence against each of the accused persons nor did he come to any finding as to what part, if any, each of these accused persons had I taken in the transaction. A sweeping order that all the accused persons, including the clerk in the office of the Sub-Registrar, were to be committed, on the facts and in the circumstances of the case, cannot be supported. Even if the prosecution evidence regarding removal of Surehdra to the house of his nephews be accepted, that would only show that there was some haste which seems rather undue or unusual, and that may raise certain amount of suspicion in the mind but it cannot be inferred frani those; circumstances that any criminal offence had been comrtjitted or that .the accused persons had any object of committing any offence. It may be equally possible that iSurendra Kamiiya had the intention of making a gift of a; small parcel of land in favour of his nephews being satisfied with their nursing and treatment; and just before leaving this world1 he Iso made a gift in respect of a tiny parcel of land in favour of the Shebait of the deity.
23. In short it is not possible for me to say fiat the Magistrate who held the commitment enquiry had committed a material error in discharging the accused or had illegally or improperly tfnder-rated the value of the evidence. After; consideration of the materials on the record I am unable to say that there is any prima facie evidence or there; are sufficient grounds for committing the accused petitioners to the Court of Session.
24. In the result, the Revisional netftlons are allowed: and the Rules are made absolute. The order of the learned Additional District Magistrate is set aside and the, commitment which was directed to be made by the iterance Additional District Magistrate is quasnea. me order of discharge under Section 209 of the Code of Criminal Procedure is upheld.