Bapna, J. - (1.) THIS is a revision against an order of the Sessions Judge, Bhilwara, directing that the petitioner, Jamsulal, be committed to his Court to stand trial for offences under sections 364, 369 and 302 of the Penal Code.
(2.) THE facts of the case are that on the 8th of September, 1948, (Bhadwa Sud 6, Samwat 2004) Salam Chand took his son Bhanwarlal, aged about 11 years, to temple, after putting on his person a necklace and other ornaments, as it was a festival day. After returning from the temple, the boy was left at the shop, and his father went away in search of a she-buffalo. THE father returned at 12. 30 P. M. and did not find the boy either at the shop or at the house, and at 5 P. M. made a report to the Police that Bhanwarlal was missing with the ornaments on his person. THE case for the prosecution is that after Salam Chand had left, the boy went out to the jungle to ease himself, and was there met by the petitioner, Jamsulal, who decoyed him by promise to give guavas towards Mokhampura, and there robbed him of his ornaments and threw him into a well. THE prosecution produced 20 witnesses. Some witnesses were examined by the accused. THE Magistrate, by an order dated the 25th of May, 1950, discharged the accused. On revision by the Public Prosecutor, the learned Sessions Judge, Bhilwara, accepted the revision, set aside the order of discharge, and directed the Magistrate to commit the case to his Court as aforesaid. In this petition it is argued that the order of the learned Magistrate should be maintained, for, according to the learned counsel for the petitioner, the learned Magistrate, after a careful consideration of the evidence, came to the conclusion that no case had been made out against the petitioner. The principles laying down the duties of the Magistrates in cases which are committed to the Court of Sessions are well established in A. I. R. 1935 Bom. 137 (F. B.) (1) (Ramchandra Babaji Gore vs. Emperor ). In order to satisfy himself whether he should commit the accused for trial by a Sessions Court the Magistrate is entitled to go into the evidence. In other words, he has got to satisfy himself that there are sufficient grounds for committing the accused person for trial, and to do that he must consider the evidence, both its nature and credibility. If the magistrate comes to the conclusion that there is evidence to be weighed, (which means evidence that is worth weighing), he ought to commit the accused for trial and he ought not to discharge the accused merely because he thinks that if he were to try the case himself he would not be prepared to convict the accused on the evidence before him. But if he comes to the conclusion that the evidence for the prosecution is such that no tribunal, whether a Judge or jury, could be expected to convict the accused, then he ought to discharge him. As observed by Ganga Nath J. in A. I. R. 1937 All. 373, (2) (Ishaq & Others vs. Emperor) "there are three classes of cases, namely, (1) cases where the evidence is prima facie so clear that nobody can entertain any doubt that the matter ought to be tried; (2) cases where the evidence is so palpably tainted, absurd, incredible and, as it has been described on occasions, groundless that no body could doubt that it would be a hardship and unjust to an accused person to allow the matter to go any further and (3) cases which ofcourse provide debatable ground, where the evidence is conflicting and lays itself open to suspicion but where on the other hand it may be true and may commend itself to certain tribunals. " In A. I. R. 1941 Patna 505 (1) (Moinuddin vs. Sheogobind Sahu & another.) Meredith J. observed that "the law empowers the Magistrate to weigh the evidence, but it is one thing to weigh the evidence with a view to determining whether there are or are not sufficient grounds for commitment within the meaning of section 209, and another to balance the evidence, as it is the duty of the Sessions Court to do in order to decide upon the guilt of the accused after considering the case as a whole. It is not for the Magistrate to usurp the functions of the Sessions Court. It is not for him to decide whether upon the whole this witness or that witness should or should not be believed. Section 213 uses the expression 'not sufficient grounds for committing the accused. ' This expression is quite different from such expression as 'the case not proved' or 'the accused are innocent. '" In A. I. R. 1939 Bom. 372 (2) (Akberally Tayaballi vs. Amimaho-med Abdul Hussalt.), Macklin, J. , after referring to the Full Bench decision in A. I. R. 1935 Bom. 137, observed, "the Magistrate's duty is to consider whether a conviction is possible in the case, and in order to come to that conclusion he is entitled to appreciate the evidence but he must appreciate the evidence from that point of view only, and it is not within his province to consider the evidence merely from the point of view of the probability of a conviction resulting. It may be that a conviction is improbable. But if it is possible for a Court to take such a view of the evidence as to be able to found a conviction upon it, then it is the duty of the Magistrate to commit the accused for trial. " The prosecution evidence in this case consisted of the statement of the complainant who gave evidence that the boy was wearing ornaments and was found missing on the mid-day of 8th September, 1948. One set of witnesses, viz. , Dhapu, Ladhuram, Bashir, and Faqruddin, was produced to prove that the accused was seen with the boy. The Magistrate has criticized this evidence and held it to be unreliable. Another set of witnesses purports to prove that the ornaments worn by the deceased were recovered from the shop of the accused on the 12th of September, 1948. The learned Magistrate disbelieved this evidence on the score that on an earlier search of the same shop on the 9th of September, 1948, nothing incriminating was found. The explanation given by the prosecution witnesses that the particular spot was not searched on the earlier occasion was disbelieved. The prosecution relied on the medical evidence supplied by the doctor, who examined the accused that certain marks of finger nails were found on the neck of the accused. This evidence was held to be of no consequence as in the opinion of the doctor they could also be self-inflicted. The conclusion at which the Magistrate arrived was that the evidence was not sufficient for convicting the accused. According to the statement of law laid down above, the Magistrate has only to see whether the evidence is sufficient for committing the accused and not whether it is sufficient for convicting the accused. The learned counsel for the petitioner contended that the evidence is unreliable, and that the accused could not possibly be convicted on this evidence. The point, as stated above, is, not whether he should be convicted on this evidence, but whether the Magistrate had any right to substitute his judgment for the final judgment of the Court indicated by law for the trial. The learned Sessions Judge has gone through the evidence, and said in his order that there is evidence in support of the charge, and that there are several circumstances which are to be explained by the accused, in other words, that a conviction may be possible. The learned counsel took me through the evidence to show that the conviction is not possible. Whether the learned Sessions Judge is right in his view or not, it is not necessary to consider at this stage. It would not be right to once more appreciate the evidence and hold that no court could possibly convict when one court has at least given an indication that on the evidence a conviction is possible. Suffice it to say that it is not a case in which the discretion exercised by the learned Sessions Judge under section 435 of the Code of Criminal Procedure should be interfered with in revision. It is, therefore, ordered that the application be rejected. .;