- (1.) THIS reference comes on the report of the Session Judge, Pali dated the 2nd December, 1953.
(2.) THE facts given rise to it are that one Hardeo Daroga resident of Dholided in Tehsil Jetaran was challaned by the Police in the court of Sub-Divisional Magistrate, Jetaran for an offence under sec. 304 I. P. C. After preliminary enquiry, the said magistrate committed the accused to the court of Sessions Judge, Pali to stand his trial for the said offence. THE learned Sessions Judge has reported that at the time of hearing the bail application on behalf of the accused, he has gone through the prosecution evidence produced in the committing Magistrate's court. He says that there is very little or practically no evidence against the accused and that it should not have been considered sufficient for committing him to his court. He thinks that there is Utile likelihood of the conviction of the accused and therefore, he has recommended that the commitment should be quashed by this court. The learned advocate for the accused supports the reference while the learned Deputy Government Advocate opposes it on the ground that this court should not go into the question of sufficiency of evidence and since the commitment can be quashed only on a question of a law and the learned Sessions Judge has not pointed out any fatal error of law, the reference should be rejected. I have gone into the report of the committing Magistrate and also into the reference made by the learned Sessions Judge, The committing Magistrate has come to the conclusion after appreciating the prosecution evidence, that although the prosecution witnesses have tried to save the accused on account of their close relationship with him, yet there is sufficient prima facie case against him for committing him to the court of Session. The learned Sessions Judge has also tried to analyse the evidence. He does not say clearly that there is no evidence at all against the accused. He thinks that the prosecution evidence is not strong and, therefore, conviction may not be possible. It may be pointed out that sec. 215 of the Criminal Procedure Code clearly lays down that a commitment once made by a competent authority can be quashed only on a point of law. The learned Sessions Judge has not referred to any fatal mistake of law which might have been committed by the prosecution. He does not also say that any particular ingredient necessary for constituting the offence is missing. If there is no evidence at all against the accused, that may itself become a question of law, but if there is some evidence against him, then, in that case the commitment cannot be quashed simply because the learned Sessions Judge is in doubt if conviction would be possible on its basis. In the case of Burjorji Nowroji Kela-walla vs. Emperor (l), it was observed by the learned Judges of the Division Bench that a distinction must be made between a case where the Magistrate has discharged an accused under sec. 209, Criminal Procedure Code, refusing to commit him, and one where, in fact, he has directed a committal, although he disbelieves the main prosecution evidence. In the former case High Court will not interfere with the order of discharge, but in the latter High Court will not quash the committal. Again in the case of Hassam Din vs. Emperor (2), it was observed that an order of committal can only be quashed on a point of law and the absence or insufficiency of evidence does not constitute a point of law justifying a commitment being quashed. Similarly in the case of Emperor vs. Mithi Lal (3), it was observed that the commitment of the accused cannot be quashed because of the possibility of the Sessions Judge's holding in favour of the accused and against the prosecution after he has heard the evidence. The counsel for the accused has referred to the case of Bherun Lal vs. Kuber Singh (4) but that was a case of discharge by the Magistrate and as pointed out above in Burjorji Nowroji Kelawalla vs. Emperor (l) a distinction has to be made between an order of discharge and an order of commitment made by the committing Magistrate. In the present case, it cannot be said from the record of the committing Magistrate's court that there is no evidence at all against the accused. It is not proper to enter into the appreciation of prosecution evidence at this stage because even if it be assumed that the prosecution evidence is not strong, that would not be a good ground for quashing the commitment under sec. 215 Cr. P. C. The reference is, therefore, rejected. . ;