- (1.) THIS is a revision under sec. 439 Cr. P. C. by Ganpat against the Additional Sessions Judge, Sikar directing that Ganpat accused may be arrested and be committed for trial under sec. 436 IPC. The material facts are these : On 23rd December, 1956 Chandra, the opposite party filed a complaint against Ganpat and 6 other persons under secs. 436, 395, 147 and 323 I. P. C. making the following allegations: - 1. That on 5th Dec, 1958 seven persons including the present petitioner Ganpat, Himmat Singh Sub-Inspector and Dhokalsingh another police official formed an unlawful assembly and went to the Dhani of the complainant. There Ganpat the petitioner and one Pabudansingh began to take away sheaves from his Dhani and the remaining accused began taking 'pala' and 'toontra' (grain ears) which were just near to his Dhani. The wife of Chandra objected to be taking away of the articles. Thereupon Himmatsingh, S. H. O. caught hold of her neck and pushed her away. She tried again but met the same fate. She raised alarm which attracted some neighbours who came to the spot of occurrence. After the sheaves and two bags of wool were thus taken the accused Ganpat set fire to the Dhani which was reduced to ashes. Weaving articles worth Rs. 150/- and door shutters worth Rs. 10/- and some other miscellaneous articles were burnt therein. The fire could not be extinguished, because the accused Himmat Singh had arrested the complainant Chandra and his nephew Deva. An explanation for the delay was also offered by the complainant stating that he approached the Superintendent of Police and other higher authorities but failed to get any redress and ultimately under the advice of some M. P. he filed the present complaint. An inquiry under chapter XVIII was held by the Magistrate during which the complainant and the accused both examined their witnesses. The trial Magistrate after completing the enquiry discharged all the accused. Dealing with the case of 436 I. P. C. against Ganpat the trial Magistrate gave some reasons which may be summed up as follows : - (1) The complainant and his witnesses had stated that they could not extinguish the fire as they had been kept under custody by the S. H. O. During statements they made some discrepant statement that they had been hand-cuffed. (2) At the time of the incident the Sub Inspector himself was present and it was, therefore, impossible that the accused Ganpat would dare commit offence under sec. 436 I. P. C. in the very presence of the Sub Inspector and quite a large number of other persons. (3) When the wife of Chandra could resist the Sub Inspector in his attempt to take fodder, why she could not resist Ganpat in his act of setting fire to the Dhani. (4) Referring to the statement of Balu, the trial Magistrate held that he is unreliable as he could not give the details of the articles that were in the hut and burnt although he was quite Hereby. Another reason stated was that when everybody else attempted to extinguish the fire there is no obvious reason why he did not take part in extinguishing the fire. He held the entire evidence unreliable and passed an order of discharge.
(2.) ON revision by the complainant the Additional Sessions Judge, Sikar agreed with the finding of the trial Magistrate so far as other accused are concerned. He recorded the following observations - "to me it appears that the lower Court has rightly discharged Himmat Singh, Pabudan Singh, Kana, Rameshwar, Asha and Dhokal Singh. They have not only been falsely prosecuted, but they have been made to incur a good deal of expenses in obtaining a large number of certified copies from the Police to produce the same in defence in this case. " With regard to Ganpat, the Additional Sessions Judge came to a contrary conclusion. Pointing out that somebody did set fire to the Dhani he referred to the two contradictory versions put forward by the prosecution and the defence. The prosecution case was that it was Ganpat who set fire to the hut. The defence version was that it was Chandra's' wife who set fire to the hut. He, however, thought that it was not "for the committing Court to scrutinise the evidence in such a way so as to find out whether it was the accused Ganpat who committed the arson. Assessment of evidence or its interpretation is beyond the scope of the powers of the committing court. Accepting this as the guiding principle and without attempting to consider which of the two versions appears prima facie acceptable he set aside the order of discharge and directed the commitment of the petitioner Ganpat for the trial. Mr. Dutta appearing for the petitioner has in the first instance contended that the Additional Sessions Judge has examined the case from a wrong angle. According to him the Additional Sessions Judge has not adopted the correct principles which should guide the committing Magistrate in deciding whether a case should be committed or not. In this connection he referred to one judgment of this Court and another of Supreme Court. In Bherunlal Vs. Kuber Singh (1) the learned Chief Justice observed : - "this Court on numerous occasions has pointed out that the Magistrate should not, as a general rule, play the role of a post office only and commit an accused to the Court of Sessions when there is not even a remote probability of the case ending in a conviction. At the same time the Magistrates cannot assume the functions of a Sessions Judge and take upon themselves the duty of sifting evidence in cases which are on the borde line. " The learned Judge then referred to the evidence which was produced in the case and observed - "i should not order the commitment of accused Kuber Singh merely on the ground that the complainant and his brother-in-law have given sworn testimony against him. " In the Supreme Court case K. G. Ruia vs. The State of Bombay (2) Sinha J. as he was then, very precisely and accurately summed up the principles in the following language - "in our opinion, the law in India and the law in England, on the question now under consideration, appears to be the same. In Halsbury's Laws of England, Vol. 10, 3rd Ed. (Lord Simonds) in Art. 666 at p. 365, the law has been stated thus: When all the evidence has been heard, the examining justices then present who have heard all the evidence must decide whether the accused is or is not to be committed for trial, Before determining this matter they must take into consideration the evidence and any state ment of the accused. If the justices are of the opinion that there is sufficient evidence to put the accused upon trial by jury for any indictable offence they must commit him for trial in custody or on bail. " In each case, therefore, the Magistrate hold ing the preliminary inquiry, has to be satisfied that a prima facie case is made out against the accused by the evidence of witnesses entitled to a reasonable degree of credit, and unless he is so satisfied, he is not to commit. " Mr. Dutta contended that if the above principles are applied to the facts of the present case it will be obvious that the Additional Sessions Judge cannot be said to have acted properly and justifiably in setting aside the order of discharge. It was pointed out that the complainant and his witnesses had come forward with a definite story that Ganpat along with six others had formed an unlawful assembly and had reached his Dhani and committed very serious offences including offence of dacoity. All the witnesses had been completely disbelieved so far as the main part of the story is concerned. Even the Additional Sessions Judge has agreed with the appraisement of evidence by the trial Magistrate on this part of the case. When a very substantial part of the prosecution case was disbelieved and when the witnesses were found untrustworthy on the main part of the prosecution case it was hardly proper for the Additional Sessions Judge to refer to a part of the prosecution case and to direct commitment even without recording any definite opinion with regard to that case also. Mr. Dutta admitted that the Magistrate did not formulate reasons in a thorough manner but on a proper analysis of the Magistrate's order a conclusion is easily and safely reached that he did apply his mind to the evidence of the witnesses and did not consider it reliable at all. In reply it was urged by Mr. Chatterjee that some body set fire to the Dhani being undisputed, the committing Magistrate had no jurisdiction to decide as to which one of the contradictory versions is correct. It is true that it is not the function of the committing Magistrate to weigh very nicely evidence so as to decide which version is acceptable or not but it is certainly the function of the committing Magistrate to decide whether there is reliable evidence in support of the version put forward by the prosecution upon which a court might act. The object of the committal proceedings is to prevent frivolous cases being sent to Sessions Court and to save their time. The committing Magistrate is under a duty to decide whether there is reliable evidence on which there is reasonable possibility of accused being convicted. The Additional Sessions Judge did not examine the case from this angle and directed commitment mainly on the ground that there were two conflicting versions before the Committing Magistrate. I have considered the case very carefully and perused the materials on record. The prosecution case is put forward in a very exaggerated manner. It has been disbelieved in a substantial measure by the two courts below. Even with regard to the part relating to Ganpat while the Magistrate gave a clear finding that it is false the Additional Sessions Judge did not care to examine the correctness of the finding. Adopting a wrong approach as to the functions of a commiting Magistrate he without applying a judicial mind to the facts and circumstances directed the committal of the accused. In my judgment it will not be safe to act upon the evidence of these witnesses who have been disbelieved in essential particulars and there are hardly materials on which there can be a reasonable possibility of conviction of the accused Ganpat. The order of discharge passed by the Committing Magistrate was reasonable and proper and the Additional Sessions Judge was wrong in interfering with that order. I, therefore, accept the revision, set aside the order of the Additional Sessions Judge and restore the order of the Committing Magistrate and direct that the accused shall be discharged. .;