- (1.) THIS is a revision petition by Bansilal against an order of the Extra Magistrate, Indargarh, dated the 9th August 1951, by which Kesra, Madho, Mathura and Lachhman were discharged under sec. 366 I. P. C. and Kesra, Rughnath and wife of Lachhman were acquitted of an offence under sec. 379 I. P. C. Notices were issued to Kesra and others to show cause why the order of the Extra Magistrate, Indargarh, be not set aside and the case be ordered to be committed to the Court of Session. Mr. D. M. Mathur has appeared on behalf of Lachhman and his son Kesra and the other accused have failed to put in their appearance.
(2.) A complaint was lodged on behalf of Bansilal by his father Kanha on the 9th of November 1949 in the court of the Sub-Divisional Magistrate, Kotah, against Kesra and 13 others and it was alleged that the accused persons kidnapped Mt. Bhuri, wife of Bansilal, aged 14 years, from the filed of Shri Krishna in village Dhipari during the night between the 30th and 31st of October 1949. The complaint was sent by the Magistrate to the police for enquiry under sec. 202 Cr. P. C. Another complaint was lodged to the same effect on the 1st of December 1949 which was transferred to the court of the Extra Magistrate at Indargarh by the Sub-Divisional Magistrate, Kotah, for disposal according to law. The case was then inquired into the Magistrate and on the 10th of March 1951 charges were framed against Kesra, Madho, Mathura and Lachman of an offence under sec. 366 I. P. C. and against Kesra, Raghunath and wife of Lachhman under sec. 379 I. P. C. and the remaining accused were discharged. The learned Magistrate then proceeded to examine the defence evidence of the accused and no the 9th of August 1951 after hearing the arguments of both the sides he record and order purporting to be one under sec. , 213 (2) Cr. P. C. discharging the accused Kesra and three others under sec. 166 I. P. C. and acquitting the remaining accused of offences under sec. 379 I. P. C. as that offence was triable by that court. The complainant has come to this court against the aforesaid order of the Extra Magistrate and it has been urged that the Magistrate took a wrong view of his powers under sec. 213 (2) Cr. P. C. in sifting the prosecution evidence again and in discharging the accused at that stage of the proceedings. It is further said that the two cases referred to in the judgment of the Magistrate which were cited on behalf of the accused did not support the view taken by the Magistrate as regards his authority to make an order of discharge. See In re: V. T. Elaya Pillai (l) and Mohammed Abdul Hadi vs. Baldeo Sahai (2) Sec. 213 (2) Cr. P. C lays down that if the Magistrate, after hearing the witnesses for the defence, is satisfied that there are not sufficient grounds for committing the accused, he may cancel the charge and discharge the accused. The learned Magistrate in the present case purports to have acted under this provision of the law but he has not, as has been observed in his judgment,placed any reli-ance on the defence evidence which he examined subsequently under the provisions of sec. 212 Cr. P. C. He has noted that it was not necessary to scrutinize the evidence produced in defence when the prosecution evidence itself was of doubtful character. The learned counsel of Lachhman and his so has referred to the case of Bherunlal vs. Kubersingh (3) in order to show that the Magistrate had an authority to order the discharge of the accused. It may be observed that the head-note to the report appears to be incorrect. ( (a) In Bherunlal vs. Kubersingh the law regarding the commitment proceedings being accepted as laid in Bilas Singh vs. Emperor (A. I. R. 1942 All. 334) the point which remained for decision in that case was whether the High Court would order commitment of the accused in the circumstances. The head note was put in with reference to this point only and not with reference to the power of the Magistrate. In the light of the observations of his lordship in this case the head note in Bherunlal vs. Kubersingh should be read, within its restricted meaning, under sec 213 as will as under sec. 209.- Editor)There is no reference to sec. 213 Cr. P. C. in the body of the judgment. From a perusal of that judgment it appears that in that case the Magistrate did not order committment nor did he frame any charge against the accused. The order of discharge in that case therefore was one under sec. 209 Cr. P. C. and the point urged was that the Magistrate should not have sifted the prosecution evidence in order to discharge the accused. It was held that if there was not even a remote possibility of conviction the accused should not be put to harassment by being ordered to be committed. The judgment in that case therefore is of on help in this case. Under sec. 213 (2) Cr. P. C. a magistrate can discharge an accused person even after framing a charge if he is satisfied that in view of the defence evidence examined subsequent to the charge there are not sufficient grounds for committing the case. This provision of law is only intended to provide for cases in which the evidence record after the framing of the charge so charges the aspect of the case as to leave no reasonable doubt that a conviction would not be possible. The Magistrate under sec. 213 (2)Cr. P. C. cannot go back on his decision to frame a charge unless some evidence of the defence has been taken which rebuts the prosecution evidence. In the present case it is no account of the strength of the defence evidence that the order of discharge has been record by the Magistrate but the magistrate has re-sifted the prosecution evidence and has come to the conclusion that he case is one of doubtful character. It is obvious that the view taken by the Magistrate of the provisions of sec. 213 (2) Cr. P. C. is not correct and he was not competent to discharge the accused at that stage of the proceedings when in his opinion he was not satisfied that the defence evidence was sufficient to rebate prosecution evidence so as to enable him to come to the conclusion that conviction would not be possible. Mr. Mathur for the accused also conceded that the order of the Magistrate was not warrant by the provisions of sec. 213 (2) Cr. P. C. and that the Magistrate should be directed to proceed according to law. It was not the duty of the Magistrate to sift the prosecution evidence over again at that stage of the case when there was not much in the defence evidence to justify interference with his previous order of framing the charges. The case of Allahabad and Madras High Courts which have been referred to in the judgment of the Magistrate do not support his view and are rather against the view expressed by him. According to these judgments accused persons can be discharge under sec. 213 (2)Cr. P. C. if there is defence evidence sufficient to rebut the prosecution evidence. This revision application is therefore accepted and the order of the Magistrate discharging the accused Kesra, Madho, Mathura and Lachhman is set aside, and he is directed to proceed according to law. The order of acquittal of Kesra, Raghunath and wife of Lachhman will stand and is not disturbed. .;