- (1.) THESE two revision applications arise out of a common case and are therefore being disposed of together.
(2.) A charge sheet was submitted by the police against Pukhraj alias Lachhi, Sukhraj, Khema, Vishnu Dutt, Madanlal, Biamam Singh and Hazari under secs. 366, 368 and 376 of the Indian Penal Code in the court of Municipal Magistrate, First Class, Jodhpur. The learned Magistrate took proceedings under sec. 207-A of the Code of Criminal Procedure. He examined Mst. Sharda the abducted girl, Mst. Anandkaur (P. W. 2) mother of Mst. Sharda and Bhupat Ram (P. W. 3 ). He also recorded the statements of the accused. After considering the documents referred to in sec. 173 of the Code as well as the evidence recorded before him and after hearing the prosecution and the accused, the learned Magistrate discharged Vishnu and committed rest of the accused to the court of Session. Charges under sec. 368 were framed against Braham Singh and Hazari. Ramdas father of Mst. Sharda filed a revision application against the order of discharge of Vishnu and the learned Additional Sessions Judge, No. l,jodhpur accepted the revision application and directed the Magistrate to commit Vishnu for his trial under secs. 366 and 376 of the Indian Penal Code to the court of Session. Criminal revision No. 367 of 1962 has been preferred by Vishnu against the order of the learned Additional Sessions Judge. Braham Singh and Hazari have filed criminal revision No. 420 of 1962 for quashing the order of commitment made by the Municipal Magistrate, their similar application before the learned Additional Sessions Judge, No. 1, Jodhpur having failed. Briefly stated the prosecution story is that Mst. Sharda (P. W. 1) who is the daughter of Ramdas resident of Jodhpur was married at Samdari and her relations with her mother-in-law were strained. On 20th May, 1961, she alone came to Jodhpur by train to see her mother who was lying ill in the hospital. At the station she met accused Pukhraj, Khema and Vishnu who took her to a Vakil's house and got a document prepared telling Mst. Sharda that the document would help her in severing her connection with her mother-in-law and she would be able to live an independent and peaceful life with her husband. That day she was left at the house of one Jaikishen and was told by the accused not to disclose the facts which had transpired between them otherwise she will have to meet dire consequences. Next day one of the accused took her away from Jaikishen's house and two other accused also joined him on the way. She was then taken to the bungalow of a Magistrate where an affidavit was sworn by her. When she came down from the Magistrate's bungalow Madanlal accused was standing with a truck near that place. Accused Pukhraj alias Lachhi, Khema and Madanlal by deceitful means took her to Machin-ghar in Sursagar. On that night, Khema Lachhi and Vishnu committed rape on her. For five days, she was kept at Machinghar where Khema, and Lachhi used to come every night. From Machinghar she was taken to the house of Brahamsingh and kept her concealed there for three days ; where too Lachhi and Khema committed rape on her. From Brahamsingh's house she was taken by Lachhi and Khema to the house of Hazari and was also kept there for three days. From Hazari's house she was brought back to Sardarpura in Jodhpur and was kept in a small room where she was recovered by the police on 31st May, 1961 at 5-30 a. m. Ramdass father of Mst. Sharda having already informed the police on 25th May, 1961 about the abduction of her daughter and his suspicion that Khema, Lachhi, Vishnu and Mimi were her abductors. Learned counsel for the petitioners have strenuously contended that there was no prima facie case for commitment of the petitioners to the court of Session. It is also urged that several requests were made before the learned Magistrate to examine a few more prosecution witnesses but he arbitrarily declined to do so. The procedure to be adopted by a Magistrate in proceedings instituted on a police report in cases exclusively triable by a court of session is prescribed by sec. 207-A of the Code of Criminal Procedure. Sub-sec. (6) lays down that - "when the evidence referred to in sub-sec. (4) has been taken and the Magistrate has considered all the documents referred to in sec. 173 and has, if necessary, examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him and given the prosecution and the accused an opportunity of being heard, such Magistrate, shall, if he is of opinion that such evidence and documents disclose no grounds for committing the accused person for trial, record his reasons and discharge him, unless it appears to the Magistrate that such person should be tried before himself or some other Magistrate, in which case he shall proceed accordingly. " Prior to the amendment of the Code of Criminal Procedure by Act No. XXVI of 1955 which introduced sec. 207-A, the procedure to be followed by a Magistrate in all cases was prescribed by sec. 209 (1) which is in the following terms. "when the evidence referred to in sec. 208, sub-secs. (1) and (3) have been taken and he has (if necessary) examined the accused for the purpose of enabling him to explain any circumstances appearing to the evidence against him, such Magistrate, shall, if he finds that there are not sufficient grounds for committing the accused person for trial, record his reasons and discharge him, unless it appears to the Magistrate that such person should be tried before himself or some other Magistrate, in which case he shall proceed accordingly. " It would thus appear that there is a difference in the language used in the two sections. Under sec. 209 (1) a Magistrate is empowered to discharge an accused if he finds that there are no sufficient grounds for committing him for trial, while under sec. 207a (6) he is empowered to discharge him if evidence and documents disclose no grounds of committing him for trial. The principles which should guide a committing Magistrate in dealing with a case exclusively triable by a court of session, are well settled. Although he has a duty of weighing the evidence but he should do so to see whether the case is fit to be committed - whether the evidence is such that a judge or jury could reasonably be asked to make it basis of conviction. It is his duty to commit the accused to the court of session where the evidence is conflicting and lends itself open to suspicion but on the other hand it may be true and commend itself to certain tribunals. (See Laxmandas Vs. Hiralal (1) and Bhagirath Vs. Ganpat (2 ). In Ramgopal Ganpatrai Ruia Vs. State at Bombay (3), their Lordships of the Supreme Court after noticing decisions of several High Courts on this question pointed out that the law in India and the law in England on the question, which is thus stated in Halsbuary's Laws of England Volume 10, 3rd Edition (Lord Simonds) at page 365, is the same. "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 statement of the accused. If the justices are of 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. " Their Lordships summed up the position in these words : - "in each case, therefore, the Magistrate holding the preliminary enquiry, 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. " These being the guiding principles for committing the ' accused for trial under sec. 209 (1) of the Code of Criminal Procedure the question is whether the same principles would apply to cases instituted on police reports. The Amendment Act No. XXVI of 1955 did not completely do away with the committal proceedings but only simplified the procedure to be adopted by Magistrate in such cases. One of the objects underlying the commitment proceedings is to enable the Magistrate to discharge the accused if there are no grounds for committing him for trial and thus prevent his unnecessary harassment. The Magistrates, therefore, are not to act like post offices and commit each and every case which comes before them on a police report. In appropriate cases where they find no grounds to commit the accused it is their duty to discharge him. The type of cases falling in such category can be where if all the documents and evidence believed do not constitute any offence triable by a court of sessions or where there is no legal evidence either documentary or oral in support of the charge or where the evidence in support of the case, in his opinion is so worthless that no reasonable man would accept it as true. However, it is not his duty to consider whether a conviction is probable. What he has to consider is whether on the evidence led a conviction is possible. In cases instituted on a police report the committing Magistrate has to further bear in mind that his function is further restrained under sec. 207-A because he can discharge the accused only if no grounds are disclosed for committing him for trial. The change in language is significant and indicates that stronger grounds are required for discharging an accused under sec. 207-A than under sec. 209. The following observations from a recent decision of the Supreme Court in Bipat Gope Vs. State of Bihar (4), on this question may be usefully quoted here. "whether the change of the language is deliberate or due to the fact that different draftsmen drafted the two sections, the test for discharging the accused must, in a large way, be the same under both the sections, and it is hardly necessary to decide the full ambit of Sec. 207-A, and contrast it with that of sec. 209. If there is any indication in the language it is altogether on the side that the Magistrate must find a stronger case for discharging an accused under sec. 207-A than under Sec. 209. But, whatever the meaning of the two expressions, neither of them invests the Magistrate with the jurisdiction to decide the case, as if the sessions trial was before him. To this extent Mr. Sarjoo Prosad fairly concedes, sec. 207 - A (6) cannot be carried. Put in other words, the section can only mean that if there is a prima facie case triable by the court of Session, the Magistrate must commit the accused to the court of Session to stand his trial. " It therefore, follows that though the test for discharging the accused under sec. 207-A in a large way is the same as it was under sec. 209 (1) but under the former section the reasons for discharging the accused must even be stronger than under the latter. We have therefore, to examine the present case in the light of the aforesaid principles and see whether the order of discharge of Vishnu passed by the learned Magistrate is correct. Mst. Sharda in her statement gave a detailed account of her abduction and concealment at different places. During her examination she was confronted with her previous deposition recorded under sec. 164 of the Code of Criminal Procedure on 9th June, 1961 where she denied having been abducted by the accused and did not make any incriminating statement against them with regard to this matter. The learned Magistrate considered her statement as a whole in the light of her previous statements and came to the finding that the statement recorded under sec. 164 was not voluntary and what Mst. Sharda stated before him was believable. On the basis of her statement, statement of her mother coupled with a certificate of Oriental College Jodhpur with regard to her date of birth, he also came to the conclusion that at the time of her abduction she was below the age of 18 years. Having come to these findings he held that there was a prima facie case to commit Pukhraj alias Lachhi, Sukhraj alias Mimi and Madanlal for their trial to the court of session. As regards Vishnu he observed that Mst. Sharda has stated that accused Vishnu, Khema and Lachhi had taken her to a Vakil's house on 20th May, 1961 from the railway station and further that Vishnu had seduced her to illicit intercourse at Sursagar on 21st May, 1961. The learned Magistrate then observed that Vishnu was not associated in the kidnapping or abduction of the girl and there is no evidence in police challan papers for corroboration of the statement of Mst. Sharda which could show at least that he did accompany her and accused Lachhi and Khema upto the Vakil's house or that he was present at Sursagar on the following day. The learned Magistrate was clearly in error in discharging him on the above stated grounds. Having relied upon the statement of Mst. Sharda about her story of abduction and rape upon her on the night of 21st May, 1961, by Lachhi and Khema it was not open to the learned Magistrate to say that her statement alone was insufficient for the commitment of Vishnu and required further corroboration. Vishnu's case could not be differentiated from that of Lachhi and Khema because Mst. Sharda had stated that he too had taken her to vakil's house from the railway station and had committed rape on the night of 21st May. Mst. Sharda's statement afforded prima facie evidence for the commitment of Vishnu and it was not for the committing Magistrate to see whether it required further corroboration. Whether her sole testimony could be made a basis for conviction or not was to be judged at the trial. Apparently Vishnu's case could not be distinguished from the case of other accused whom the learned Magistrate thought fit to commit on the evidence of Mst. Sharda. The learned Magistrate has remarked that the kidnapping cannot be regarded to have started from Jodhpur Station from where the girl was taken on 20th May, 1961 and probably on that basis said that Vishnu was not associated in the kidnapping or abduction of the girl. The question whether the act of Vishnu in taking away Mst. Sharda from the railway station to a vakil's house would or would not amount to kidnapping or abduction should have been left to the trial court and the learned Magistrate should not have hazarded any opinion on that question. Whether there was only one act of kidnapping or a series of acts which completed the kidnapping is a question which can appropriately be decided by the trial court. But as stated above there was no reason for the judge to distinguish Vishnu's case from the case of other accused. Once he decided to act upon the evidence of Mst. Sharda, he had no justification to discharge Vishnu because her statement alone afforded a prima facie ground for his commitment. This being so it is clear that the order of Vishnu's discharge was improper. Learned counsel vehemently urged that Mst. Sharda's story of her abduction was palpably false and no reasonable person could believe it to be true. It was therefore, urged that it was a fit case where this court should examine her statement for itself and see whether it could be relied upon. I am however, unable to accept this contention. Since Mst. Sharda's statement has commended itself to the learned Magistrate it would not be proper for this court to say at this stage of the case whether her evidence is believable or not. Apart from it the learned Magistrate has prima facie found that Mst. Sharda at the time of her abduction was below the age of 18 years. This fact will have an important bearing on the determination of the guilt of the accused in case a plea about her being a consenting party is raised at the trial. Therefore, no interference is called for with the order of the learned Additional Sessions Judge and the revision application of Vishnu is rejected. I now take up the case of Brahamsingh and Hazari. In Mohammad vs. The State (5), it has been held that : "even though sec. 215, Cr. P. Code is not applicable in terms to a case committed under sec. 207 A, the High Court has ample powers under secs. 439 and 561-A, Cr. P. Code to interfere in commitments made under sec. 207-A. If it is found by the High Court that the committing Magistrate has abused the process of the court and that he has committed an illegality, or that a grave injustice has been done to the accused in his commitment then in order to secure the ends of justice, it will not only be within its power, but it. will also be its solemn duty to interfere in the matter. " These two accused have been committed for an offence under section 368 of the Indian Penal Code. The contention of the learned counsel is that there is no material on record to show that these accused persons knew that Mst. Sharda had been kidnapped or abducted, and further they wrongfully concealed or confided her. As regards Brahamsingh accused Mst. Sharda has stated that Brahamsingh was called by Vishnu at Sursagar and was asked if he could make any house available to them because if they stayed at Sursagar any longer, suspicion would arise in the minds of other persons. Brahamsingh thereupon replied that his house was vacant but they should not come there in the morning but should do so in the evening so that people may not suspect them. This statement prima facie indicates that Brahamsingh knew that Mst. Sharda had been kidnapped or abducted. She was then taken to Brahamsingh's house in the night at about 9 or 10 P. M. She was kept at his house for three days. Lachhi and Khema also slept there during these days. In the day Lachhi and Khema used to go out from the house and come back in the evening. Then Braham Singh told Lachhi and Khema to take away the girl to Hazari's house because there people had become suspicious and were talking about her. She was therefore taken by Lachhi, Khema and Brahamsingh to Hazari's house and kept there. The learned Magistrate after considering this part of the statement of Mst. Sharda thought fit to commit him for trial. The learned Magistrate does not seem to have acted wrongly in committing Brahamsingh on the basis of the aforesaid statement. I, therefore, do not find any ground to quash the order of commitment in his case. As regards Hazari, Mst. Sharda has stated that Lachhi, Khema and Brahamsingh went to him and told him that they wanted a house for three days on which Hazari told them that there was a room on the first floor of his house where they could live. There she was kept for three days and Hazari used to bring food for her. On the third day while he was sitting on the roof of the house, Hazari's wife came there ana enquired about her caste on which she said that she was a Ghanchi girl. Hazari's wife wanted to make further enquiries from her when Lachhi arrived there on which she kept silent. Hazari became suspicious and asked them to leave the house. That day she asked Hazari to get her released from the clutches of these persons but Hazari did not give any reply. From this statement it does not appear that Hazari knew that Mst. Sharda had been kidnapped or abducted. On the other hand it appears that from the talks his wife had with Mst. Sharda, he got suspicious and asked these persons to leave the house. On the basis of this statement alone it cannot be said that any prima facie case under section 368 of the Indian Penal Code has been made out against him. Besides the above statement of Mst. Sharda there is no other material on record to show in what circumstances Mst. Sharda was kept at his house. The learned Assistant Government Advocate has admitted that there is neither any oral or documentary evidence besides the statement of Mst. Sharda to prove that Hazari knew that Mst. Sharda had been kidnapped or abducted and he had knowingly kept her at his house. The learned Magistrate has not even mentioned the prima facie evidence on which he decided to commit this accused to the court of session. He has only stated that there is a prima facie evidence against both Hazari and Brahamsingh. But there is no indication of the evidence in the order of commitment. In such circumstances this Court would therefore, be justified in quashing the order of commitment in his case. The result, therefore, is that the revision application of Brahamsingh is disallowed but that of Hazari is allowed and the order of his commitment for trial passed by the Municipal Magistrate, Jodhpur is quashed. . ;