1. This rule is directed against the order discharging two accused persons under Section 209, Criminal P.C. We are asked to set aside that order and order either a commitment or further enquiry on the following main grounds: that the provisions of Section 360, Criminal P.C. were not followed by the Magistrate who held the enquiry, that a prima facie case against the accused has been made out and that the Magistrate has usurped the function of the jury in deciding the credibility of the evidence of the witnesses called for the prosecution.
2. As regards the first point, we must hold that the provisions of Section 360, Criminal P.C. were not followed. It appears that the evidence was read over in the presence of the accused's pleader, but not in the presence of the accused. It is clear from the wording of the section that if the accused is in attendance the evidence must be read over in his presence, and it is only when the accused appears by a pleader that the reading over of the evidence in the presence of the accused's pleader is sufficient. But we hold that we should not be justified in ordering further enquiry on account of this defect in the proceedings unless we thought that further enquiry was necessary in the interests of justice.
3. After hearing the learned Counsel on behalf of the petitioner we are compelled to hold that the order passed by the Magistrate was a proper order. It may be that some of the prosecution witnesses have been gained over. Whether this be so or not the fact remains that the evidence of witnesses who implicated the accused who were on their trial is totally unworthy of credit. It is said that when there is evidence it is for the jury and not for the committing Magistrate to decide whether that evidence is worthy of credit. But it has been repeatedly held that it is the duty of the Magistrate when enquiring into a Sessions case to consider whether the evidence is credible or not, and though in case of doubt he may be justified in leaving it for the jury to decide, when he is convinced that the evidence is false it is his duty to discharge the accused. In the present case we hold that the accused were rightly discharged.
4. We accordingly discharge this rule.