Decided on October 05,1955

STATE Appellant


- (1.) THE facts leading to this revision are that the accused Keshavrao Ingle, Sub-Inspector of Police in-charge of Kalapipal Police Station, after collecting a few constables from his as well as other stations, made a raid upon village Amarsingh at about midnight of 17-6-1954 in search of Jairam Bhopa, who was suspected of having stolen some property. On reaching the spot, he surrounded the huts and then enquired of the inmates about the whereabouts of Jatram Bhopa. One person from the hut began to move away, whereupon the Sub-Inspector challenged him and thinking that he was Jairam said "jairam, do not try to run away". It is said that Prabha Shankar constable was handed over the revolver by the Sub-Inspector and was asked to shoot. Prabha Shankar, in obedience to the orders of his superior fired at the man, who was injured and he died eventually. It was later on discovered that the man, who was killed was not the person wanted by the Police. The Police challaned the Constable Prabha Shankar and Sub-Inspector Kheshavrao ingle under Section 302, I. P. C.
(2.) THE Sub-Divisional Magistrate, Shujalpur, Mr. Deshmukh framed a charge against both the accused but later on under Section 213, Criminal P. Code cancelled the charge against accused Keshavrao Ingle and discharged him. The constable Prabha Shankar was, however, committed to Sessions and the trial Court, convicting him under Section 304 para 2, Penal Code, sentenced him to four years rigorous imprisonment. Against his conviction and sentence by the Sessions Judge, Prabha Shankar filed an appeal, which was allowed by me and the accused was given the benefit of exception under Section 79, Penal Code. In the course of the appeal, from the record I learnt that the Sub-Divisional Magistrate had discharged the accused Keshavrao Ingle and that a revision against that order was disallowed by the Sessions Judge. To me it appeared that prima facie there was a case against the Sub-Inspector, Keshavrao Ingle and that the Committing Magistrate had erred in cancelling the charge. I, therefore, issued a notice to the Sub-Inspector to show cause why the order of discharge should not be set aside and he be directed to be committed to the Court of Session to stand his trial.
(3.) WITHOUT discussing the evidence, it is enough to say that there are two sets of evidence in this case against the accused: First, the evidence of those who accompanied the Sub-Inspector, namely, the Police Constables and secondly, the evidence of villagers, who saw the tragedy being enacted. The witnesses who belonged to the Police force have given a version of their own and the statements of the villagers are to the effect that the Sub-Inspector ordered the constable to shoot. Thus there exists some conflict. The question before me, however, is: how far the Magistrate was competent to assume the jurisdiction of the Sessions Judge and whether in the presence of conflicting evidence, he was competent to believe one set of evidence and discard the other? Now let me say at the very outset that it is not always easy to describe the limits within which a Committing Magistrate can pass an order of discharge under Section 213, Criminal P. C. But a long line of judical decisions has broadly indicated the extent of the Committing Magistrate's jurisdiction. I refer to the observations of The State vs. Keshavrao Ingle (05. 10. 1955 -MPHC) Page 3 of 5 gle (05. 10. 1955 -MPHC) Page 3 of 5 Sulaiman J. in - 'akbar Ali v. Raja Bahadur' AIR 1925 All 670 (A), which appear to me to furnish guidance on the point. The learned Judge observed: Section 213 uses the expression "not sufficient grounds for committing the accused. " This expression is quite different from such expressions as "the case not proved" or the accused is innocent". This, however, does not mean that the Magistrate is to arrogate to himself the functions of the Sessions Court and try the case as if he were that Court himself. The policy of the legislature seems to be that serious offences, should be tried by the Sessions Judges-who are ordinarily more experienced. The Magistrate has to see whether there are sufficient grounds for commitment or not. If he is satisfied that the evidence is altogether untrustworthy and not fit to be acted upon, he may discharge the accused. He should not, however, try to weigh the probabilities of the case and then after balancing the evidence on both Bides decide. whether the guilt of the accused has or has not been conclusively proved.;

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