Greaves and Panton, JJ.
1. This Rule is directed against two orders of a District Magistrate, dated the 10th of November 1923 and 19th of November 1923, whereby he committed the four petitioners before us for trial to the sessions in respect of charges of having forged certain kabuliats. In making his order the District Magistrate reversed the decision of the Deputy Magistrate who had dismissed the complaint disbelieving the evidence of the witnesses who were cited before him and holding that no motive for the forgery of the kabuliats by the accused, either of their own accord or at the instance of their master, had been established. The learned District Magistrate in reversing the Deputy Magistrate's order states that he does so relying on the judgments of two Civil Courts which suspected the genuineness of these kabuliats, and also on the ground that there was ample evidence of motive for forgery of the kabuliats. The reasons given by the District Magistrate are clearly wrong. He had no right, we think, to rely on the judgments of the Civil Courts which clearly influenced his decision; and as to the ground of motive it seems to us that this is not established. Nafar Chunder Pal Choudhury, the master of the four accused, had a claim for mesne profits against his co-sharers, but the kabuliats related to a period subsequent to the period for which mesne profits were claimed, and it seems to us that the kabuliats could not have assisted the master of the accused in making his claim for mesne profits. We, accordingly, think that the District Magistrate was wrong in finding, as he has done, that there was ample motive for the forgery.
2. The only question that remains is whether it was open to the Deputy Magistrate, as he has done, to disbelieve the evidence of the witnesses who were called before him in support of the complaint against the accused. If it is the duty of he Deputy Magistrate merely to record the evidence and leave it to the jury at the sessions to decide as to the credibility of the evidence, then clearly the Deputy Magistrate was wrong in expressing an opinion, as he has done, with regard to the credibility of the witnesses who were before him. Some of the witnesses were cross-examined at the time the accused showed cause and consequently the Deputy Magistrate had more opportunity than ordinarily arises for arriving at an opinion with regard to their credibility. It seems to us, however having regard to the authorities that have been cited, namely, the case of Mash Behari Lal Mandal v. Emperor (1907) 12 C.W.N. 117 and the other authorities cited from other High Courts: Me Kalyan Singh (1899) I.L.R. 21 All. 265, Re Bai Parvati (1910) I.L.R. 35 Bom. 163 and the case from Madras, that it is open to a Deputy Magistrate to form his opinion with regard to the credibility of the witnesses called before him. In so saying we do not suggest that it is his duty to closely criticise their evidence. If a prima facie case is made out he should clearly leave it to the jury at the sessions to form their own view as to the credibility of the evidence. But if, after hearing the evidence, he is satisfied that it is not trustworthy and that a conviction will not result, we think that he is entitled to do, as the Deputy Magistrate has done in this case, namely, to record his finding that the witnesses who spoke in support of the charge cannot be believed and that a conviction will not result. Under the circumstances we do not think that the District Magistrate was justified in reversing the order of the Deputy Magistrate, and we accordingly make the Rule absolute. The accused will be discharged from their bail-bonds.