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) kabuliyats. 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 kabuliyats 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 on relying on the judgments of two Civil Courts which suspected the genuineness of these kabuliyats and also on the ground that there was ample evidence of motive for forgery of, the kabuliyats. 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 Chowdhury, the master of the four accused, had a claim for mesne profits against his co-sharers but the kabuliyats related to a period subsequent to the period for which mesne profits were claimed and it seems to us that the kabuliyats 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 the 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 in Rash Behari Lal Mandal v. Emperor 12 C.W.N. 117 : 6 C.L.J. 760 : 6 Cr.L.J. 405 and the other authorities cited from other High Courts, namely, In Re: the petition of Kalyan Singh 21 A. 265 at. p. 266 : A.W.N. (1899) 61 : 9 Ind. Dec. (N.S.) 878, In Re: Bai Parvati 8 Ind. Cas. 631 : 35 B. 163 at. p. 168 : 12 Bom. L.R. 923 : 11 Cr.L.J. 692, and the case from Madras In Re: Ponniah Tirumali Vandaya Thevar 65 Ind. Cas. 993 : 42 M.L.J. 49 : 23 Cr. L.J. 209 : (1922) A.I.R. (M) 43 : 16 L.W. 460 : (1922) M.W.N. 13 : 30 M.L.T. 73, 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 an 1 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.
3. The accused will be discharged from their bail-bonds.