- (1.) THIS is an application for revision by Bhagirath against the discharge of the accused Ganpat, Lachman and Harlal in a case under sec. 302 of the Indian Penal Code by the committing Magistrate. A revision was taken to the Court of Session, Jhunjhunu, but it was dismissed. THIS has brought Bhagirath in revision to this Court.
(2.) SEVEN accused, including the three discharged persons, namely, Ganpat, Lachman and Harlal, were reported to have assaulted one Hanuman constable and a few others including Bhagirath and Mangla, on the 7th of May, 1953, with the result that Hanuman died of injuries received by him,and Bhagirath and Mangla received simple injuries. A report was lodged by Bhagirath at police Station, Mandawar naming all the seven persons as the assailants of Hanuman and his party. The police, however challaned only four namely, Sheolal, Gumana, Heera and Rati Ram under sec. 302 I. P. C, but did not challan Ganpat, Lachman and Harlal. A complaint was lodged by Bhagirath against all the seven persons. An enquiry was made in the case challaned by the police as well as the complaint filed by Bhagirath, and the evidence was recorded by the learned Magistrate. Out of the witnesses examined, five, namely, Bhagirath, Mangla, Mala, Jagdev and Budha were examined as eye-witnesses of the occurrence. Two other witnesses,viz, Taru and Moti, who were named in the challan but were not examined by the prosecution, were examined by the learned committing Magistrate as court witnesses. After making enquiry, the learned Magistrate discharged Ganpat, Lachman and Harlal, and committed Sheolal, Ratiram, Gumana, and Heera to the Court of Session, Jhunjhunu. Sheolal was to take his trial under sec. 302 and the remaining three under sec. 323 I. P. C. An application for revision was filed by the Public Prosecutor against the discharge of Ganpat, Lachman and Harlal. The learned Sessions Judge, however, agreed with the Committing Magistrate, and maintained the order of discharge. The charge was amended by the learned Session Judge, and all the four accused committed to his court were charged under sec. 302 read with sec. 34 I. P. C. Bhagirath (hereinafter to be referred to as the applicant) has come to this Court in revision. It has been argued by Mr. P. N. Datt on behalf of the applicant that the learned Committing Magistrate has gone beyond his powers, inasmuch as he has discharged Ganpat, Lachman and Harlal, although there was a prima facie case against them. It was argued that in the first information report lodged immediately after the occurrence, the names of all the seven accused were given, including the three discharged persons. There were as many as five eye-witnesses, who named the discharged accused among the assailants of Hanuman. It was argued that the learned Committing Magistrate did not examine the evidence with a view as to whether it was sufficient for sending up the three accused for trial, but with a view as to whether they could be convicted without any reasonable doubt. It was argued that in doing so, the learned Magistrate usurped the functions of the trial court, and the order of discharge was, therefor, improper, learned counsel has relied upon Jamsulal vs. The State (l) and Tara Singh vs. The State (2 ). On behalf of the three discharged persons, it was argued by Mr. G. C. Chatterji that in the opinion of the learned Committing Magistrate the evidence was such that there was not even a remote probability of the conviction of the three accused. It was argued that under these circumstances the learned Magistrate was perfectly justified in discharging these three accused. Reliance was placed on a ruling of this Court in Bherun Lal vs. Kuber Singh (3 ). Learned counsel for the accused also vagued that the order of discharge has been confirmed by the Sessions Judge, and under these circumstances it would not be proper for this Court to interfere with that order. I have considered the arguments of both the learned counsel. The power of discharge has been given to a Committing Magistrate by sec. 209 of the Code of Criminal Procedure. Sub-sec. (1) of this section, which is relevant in this case, runs as follows: - "when the evidence referred to in sec. 208, sub-sec. (1) and (3), has been taken, and he has (if necessary) examined the accused for the purpose of enabling him to explain any circumstances appearing in 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 is clear that the Committing Magistrate can discharge an accused person, if he finds that there were not sufficient grounds for committing the accused person for trial, and in such a case the Committing Magistrate has got to record his reasons. From the very wordings of sec. 202 (1), it is clear that the Committing Magistrate cannot take upon himself the functions of a trial court which has got to scrutinise the evidence with a view as to whether the charge has been brought home to the accused without reasonable doubt. Three principles have been laid down by Ganganath J. in Ishaq vs. Emperor (4), which should guide the Committing Magistrate at the time of deciding whether to commit the accused to the court of Session or to discharge him They have been quoted in the ruling of this Court; Jamsulal vs. The State (l), and are as follows: - (1) Where the evidence is prima facie so clear that nobody can entertain any doubt that the matter ought to be tried, the accused should be committed to take his trial in the Sessions Court. (2) 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, the accused should be discharged. (3) Where the evidence is conflicting and laws itself open to suspicion but where on the other hand it may be true and may commend itself to certain tribunals, it would be safer for the Committing Magistrate to commit the accused to the court of Session. With respect, I agree with these principles, and am of opinion that if there is conflicting evidence which lays itself open to suspicion, but where on the other hand it may be true and may cammed itself to certain tribunals, the committing court should commit the accused to Sessions Court rather than discharge him. It would be for the trial court after carefully scrutinising the evidence, to see whether the charge has been brought home to the accused without a reasonable doubt. The same principle has been laid down in the case of Balwant Singh Ghasiram vs. Baldeosingh Thoban Singh (5 ). In the case of Tara Singh vs. The State (6), their Lordships of the Supreme Court have observed that in committal proceedings all that the Magistrate has to consider is whether under sec. 209 1) there are sufficient grounds for committing the accused for trial and not whether, on an appreciation of the whole evidence and other material in the case, including witnesses for the defence, the charge against him is proved. Learned counsel for the opposite party has relied upon a ruling of this Court in Bherun Lal vs. Kuber Singh (3 ). In that case it has been laid down, and may say, with respect, quite correctly, that if there is not even a remote possibility of conviction the accused should not be put to harassment by being ordered to be committed. This is the same as principle No 2 laid dawn by Ganganath J. in the case of Ishaq referred to above. Of course, if the evidence is such that there is not a remote probability of conviction, it would be a useless waste of time of the Sessions Court to send such an accused for trial before it. I have to see whether the principles quoted above have been kept in mind by the Committing Court in the present case when discharging Lachman, Harlal and Ganpat. Reading carefully the committal order of the learned Magistrate, I find that he discharged these three accused not because he thought that there was not even a remote probability of their conviction, but because he thought that the evidence was such which caused a good deal of doubt in the prosecution case. The learned Magistrate says at one place - "we have to proceed with a great caution because in view of the challan against four persons only there is already a doubt against the three persons named in the complaint. " A little further on he repeats - 'we proceed further with a sense of doubt in mind about Lachman, Ganpat and Harlal. " Then again the learned Magistrate says - "our doubts against these persons are further raised to a higher pitch when we find from prosecution evidence that Ganpat's daughter was married the night before and that the barat was still there. " Then the learned Magistrate discusses the evidence of the eyewitnesses and says that Bhagirath deposed that he saw Sheolal beating Hanuman deceased with barchi. He has not deposed about his having seen any other perron giving blows. Then the learned Magistrate says that other witnesses deposed that they saw all the seven accused giving blows to Hanuman. The judgment, therefore, shows that the learned Magistrate had some doubt about the assault by the accused Ganpat. Towards the end, the learned Magistrate says as follows: - "as already stated police challan leaving these three persons, namely, Ganpat, Lachman and Harlal gave doubt of their being involved in this case. The pitch of the doubt was further raised by the discrepancies of blows given by them as stated by the prosecution witnesses and the fact that Ganpat's daughter was being wedded that day and last of all confirmation of the presence of these accused at Ganpat's house by court witnesses Taru and Moti compel us to believe that Lachman, Harlal and Ganpat are not involved in this case and they have been correctly and rightly left by the police. At the most their presence and taking part in the case is doubtful. " Thus it would be found that the learned Magistrate has nowhere said that the evidence of the prosecution witnesses was so worthless that there was not even a remote probability of conviction. All that he has said is that he has more or less doubt about the participation of these three accused in the assault on Hanuman. According to principal No. 3 quoted from the judgment of the Allahabad High Court in the case of Ishaq an J from the judgment of this Court in the case of Jamsu Lal, the Magistrate was not entitled to discharge these three accused. He ought to have adopted the safer line of committing them for trial to the Session Court and ought to have left it to the said court to decide, after the trial, whether there was any doubt the participation of these three accused in the assault on Hanuman. The learned Sessions Judge has also adopted, more or less, the same line which has been adopted by the learned Committing Magistrate, To my mind, the discharge of these three accused, in the circumstances of the case, cannot be supported. The application for revision is allowed, the order of discharge is set aside, and the case is sent back to the court of the Committing Magistrate for proceeding in accordance with law and the observations made above. . ;