1. Lasea Sheikh and Shiv Nath the petitioners were proceeded against in the court of the Chief Judicial Magistrate, Bhadarwah by the Police Thana Gandoh under Section 302/34, E. P. C.-The learned Committing Magistrate by his order dated 11 12.1968 discharged both the accused on the ground that there was no evidence to connect the accused with the guilt and there was thus no prima facie case made out against them. Aggrieved by this the State filed a revision petition before the Session Judge Bhadarwah. The learned Sessions Judge by his order dated 7-10-1969 set aside the order of discharge and directed the committing court to frame charges against the accused under the appropriate section. The accused petitioners have come up in revision before this Court.
2. I have heard the counsel for the petitioner and also the learned Additional Advocate-General appearing for the State and have also gone through the file.
3. It was contended on behalf of the petitioners that there was absolutely no evidence against them. Not to speak of any direct evidence forthcoming in the case there was even no circumstantial evidence worth the name to connect the accused with the alleged act of murder of the deceased. The medical evidence did not say as to how the deceased had sustained injuries and this kind of evidence could not be made basis for holding that the deceased had been done to death. In fact the important limbs of the body especially the head were missing and it could not therefore be said with any amount of certainty that the body belonged to the said deceased. Again, mere pointed out of certain articles by the accused which led to the seizure of the same at their instance could not constitute incriminating evidence against them. It is, therefore, submitted that the order of discharge passed by the Chief Judicial Magistrate was correct and the learned Sessions Judge had illegally exercised his jurisdiction by ordering the committal of the accused. As against this it is submitted by the counsel for the State that there was prima facie evidence extant on the record against the accused and as such the committing Magistrate should have proceeded to frame charges against them under the appropriate section and should not have discharged them on the ground that there was absolutely no evidence against them. The order of the learned Sessions Judge in interfering with the order of discharge was therefore correct.
4. The learned Sessions Judge, it may be stated here, has in his order observed that ordinarily a Sessions Court should not interfere in the order of discharge recorded by the committing Court. But if the committing Court has erred in recording that, the order of discharge could certainly be up-set. In the instant case the order under revision before the learned Judge did not discuss all the aspects of the prosecution case and the other important aspects of the evidence on different facie brought on file by the prosecution. The order could not. therefore, be upheld. The learned Chief Judicial Magistrate had considered nice questions of probabilities of the ease and had discharged the accused on the ground that there was no prima facie case made out against them. In the opinion of the learned Judge the teat for commitment of an accused for trial to the Sessions Court was not whether a conviction was 'probable' on the basis of the evidence on the record but whether it was 'possible'. In coming to this conclusion, the Judge observed, the committing Court had erred,
5. Now on consideration of the evidence available on the record it cannot be said that there was absolutely no prima facie evidence against the accused on the file. Whether the evidence was one relating to the commission of the act of the alleged murder or one relating to the act of the theft of certain articles by the accused was a matter regarding which the Court had to address itself while framing the charge against the accused; but to brush aside at the committing stage the medical evidence and also the other circumstantial evidence could not be said to be a justifiable act on the part of the committing Court. Nice questions of law and also questions relating to sifting and weighing the value of the prosecution evidence was a matter that rested with the Sessions Court and not with the committing Court. The committing Court could not usurp the power of the superior Court. In AIR 1935 Bom 137 (FB) it has been held that a Sessions Judge can interfere with an order of discharge by a Magistrate if he finds that it was improper and he had arrived at that conclusion not only on the ground that the order was perverse or manifestly unreasonable and inconsistent with and honest appreciation of the evidence in the case, but also on the ground that the Magistrate had taken upon himself the discharge of a duty which under the Code was entrusted to Sessions Court, that is to say, the duty of appreciation of evidence of doubtful credibility.
The same view has been propounded In AIR 1943 Qudh 233. In : 1967CriLJ653 the view laid down is that though a Magistrate enquiring into case under Section 209 is not to act as a past office and has to come to a conclusion whether the case before him is fit for commitment, it is not his function to weigh pros and cons of prosecution and defence evidence and to discharge accused by making his own appreciation of that evidence. That was a case where on a private complaint filed by the complainant the committing Magistrate had discharged the accused on the ground that the medical evidence was not of conclusive nature and that the prosecution witnesses were interested, and also that the defence of alibi set up by the accused had been established. In revision the Sessions Judge quashed the order of discharge and committed the accused to the Court of Sessions. The High Court upheld the order of Sessions Judge. Thereupon the petitioners in that case moved the Supreme Court which affirmed the order of the Sessions Judge and also of the High Court. Their Lordships of Supreme Court proceeded to observe that questions relating to conclusive nature or otherwise of medical evidence, and the appreciation of other evidence were matters on which another Court could take a different view. The sufficiency of the ground to doubt the evidence of the prosecution witnesses was a matter the determination of which rested with the superior Court. The Magistrate in that case had ignored the fact that the superior Court could reasonably take a view different than his.
6. However, on consideration of the facts involved in the case before us, I am positively of the view that the order of discharge passed by the committing Court was improper and was rightly set aside by the learned Sessions Judge. Of course it will be for the committing Court to see under what appropriate section will the accused have to be charged, and I refrain from expressing any opinion on this question.
7. The result is that the revision petition is hereby dismissed.