Patna High Court
The State Of Bihar vs Bipat Gope And Ors. on 28 July, 1960
Equivalent citations: AIR1961PAT247, 1961CRILJ829, AIR 1961 PATNA 247, 1961 BLJR 67
ORDER R.K. Choudhary, J.
1. This application is directed against an order of discharge passed by Mr. J, Singh, Magistrate First Class, Patna City, dated the 5th of June, 1959.
2. The prosecution case is that, on the night of the 26th o£ March, 1959, at about 10-15 p.m. Rajbahadur Rai alias Chhote Rai (P. W. 3) was taking betel at the shop of Raghunath (P. W. 1). The opposite parties came from the east in a car, bearing No. BRA 261, belonging to opposite party No. 1, Bipat Gope. Some more persons also came on a tandem. Bipat and Lakhan had chhuras, Misri and Chlandrika had garasas, and Bideshi had a lathi. The persons who came in the tandem were also armed with lathis and bhalas, but they could not be identified.
Bipat ordered his men, including opposite parties 2 to 5, to kill Chhote, on which all of them ran at him, Chhote fled westwards, but he was waylaid by Chandrika and others. They pushed him, and took him towards Bipat's garage. Near the gate of the garage, Bipat again said to his men to kill Chhote, and he himself aimed a blow at his panjara, but it hit his back due to bodily movement. Misri gave a garasa blow on his head, and Chandrika gave a garasa blow on his left leg. Bideshi gave three lathi blows on the same leg, and Lakhan gave a chhura blow at his neck, but Chhote warded off the blow of Lakhan with his forearm, and so the blow hit his chin and the left hand.
Again Misri gave a garasa blow on his head, and thereafter, he became unconscious. After the assault, the opposite parties dragged Chhote to the road near the shop of Sant Singh, and then they boarded the car and the tandem on which they had come, and fled eastwards. Sheokumar Rai (P. W. 8), a brother of Chhote, and Raghunath (P. W. 1) the betel-vendor, took Chhote to the thana, and, as Chhote was not able to speak, Raghunath gave a statement, which was recorded as the first information report. After preparing injury report., Inspector N. N. Verma (P. W. 9) sent him to the Patna City hospital, where Dr. R. K. Verma (P. W. 7) gave first aid to him, and finding his injuries to be serious, he forwarded him to the Patna, Medical College Hospital tor necessary treatment. There, Dr. P. K. Verma (P, W. 4), a junior House Surgeon, examined him at 1.10 a.m. on the 27th of March, 1959 in the Emergency Room of the Surgical Section.
3. After investigation, charge sheet was submitted against the opposite parties under Ss. 307/34 and 148 of the Indian Penal Code. The learned Magistrate, on a consideration of the evidence, found that no case had been made out by the prosecution for committing. the opposite parties to the Court of Session. He, accordingly, discharged them under Section 207-A(6) of the Criminal Procedure Code. The State, being aggrieved, filed a revision application before the Sessions Judge at Patna, which was heard by the Additional Sessions Judge, Second Court, there. He agreed . with the view taken by the Magistrate in regard to his finding, although he observed that, upon the same evidence, some other tribunal might come to a different view. He, accordingly, dismissed the revision application on the 1st of October 1959. The State has, therefore, filed the present application in revision in this Court on the 16th of December, 1959.
4. Mr. Verma, appearing for the State, has pressed an argument that the offence under Section 307/34 of the Indian Penal Code was exclusively triable by a Court of Session, and the Magistrate, in an inquiry under Chapter XVIII of the Code of Criminal Procedure, had only to see if the evidence on the record was such as could prima facie be taken to be a ground for committing the accused persons. In other words, his contention is that the Magistrate dealing with the commitment proceeding has only to find out if there was any prima facie evidence against the accused tor being committed to the Court of Session to stand his trial, and not to weigh the evidence, and thus usurp the function of the Court of Session.
Mr. Banerjee, appearing for the opposite parties, however, has contended that the Magistrate dealing with the commitment proceedings has a very wide discretion and is perfectly entitled in law to weigh the evidence and scrutinise the same in order to find out if the same was sufficient for convicting the accused; and if the evidence is such which he could not take as being sufficient to prove the guilt of the accused, it is his duty to discharge the accused.
Various decisions have been cited by counsel for both parties in support of their respective contentions. There has been, a good deal of controversy with regard to the powers of a Magistrate holding an inquiry under Chapter XVIII of the Code of Criminal Procedure, and different views have been taken in different decisions.
As has been pointed out by the Supreme Court in Ramgopal Ganpatrai Ruia v. State of Bombay, AIR 1958 SC 97, in some cases it has been held that the duty of the committing Court is only to satisfy itself that there are sufficient grounds for committing the accused for trial in the sense that there is prima facie evidence which, it believed by the Court of Session, may lead to conviction of the accused; whereas there are also cases which lay down to the effect that the Magistrate holding a preliminary inquiry is empowered to weigh the evidence led on behalf of the prosecution and to decide for himself whether there is the probability of the trial ending in the conviction of the accused.
It has further been pointed out in that case, that, though it is easy to say that a Magistrate should commit the accused for trial if he is satisfied that sufficient grounds for doing so have been made out, it is difficult to apply those crucial words "sufficient grounds" to individual cases, and the observations occurring in various decisions in this respect have to be read in the light of the facts and circumstances disclosed in the case them before the Court.
5. Though there are earlier decisions of this Court which favour the contention raised on behalf of the opposite parties, the matter seems, to be now well settled in this Court by its later decisions. Reliance has been placed on behalf of the opposite parties en three decisions of this Court, namely, Tinkouri v. Emperor, 1 Pat LT 153: (AIR 1920 Pat 46); Munshi Mander v. Karu Mander, 6 Pat LT 146: (AIR 1925 Pat 279) and Ritbhanjan Rai v. Emperor, 6 Pat LT 570: (AIR 1925 Pat 599), and a Full Bench decision of the Bombay High Court in Ramchandra Babaji v, Emperor, AIR 1935 Bom 137. In the first case, 'I' Pat LT 153: (AIR 1920 Pat 46), it was held by Jwala Prasad, J. that, under Section 210 of the Code of Criminal Procedure, the Magistrate had power to weigh the evidence and discharge the accused if the evidence was found to be unworthy of credit.
That was a case of dacoity. The Magistrate after discussing the evidence in detail, held the evidence of identification to be unacceptable. The District Magistrate, without discussing the evidence, directed commitment of the accused. His judgment did not show that any view other than the view taken by the Magistrate could as taken by any Court. His Lordship on a perusal of the entire evidence himself, felt satisfied that, upon the evidence as it stood, without any cross-exa-mination, no Court could convict the accused. The decision in that case rested on the particular facts of that case.
6. In Munshi Mander's case, 6 Pat LT 146: (AIR 1925 Pat 279) also, it was held by Ross, J. that a Magistrate holding a preliminaiy inquiry info a case triable by Court of Session does not exceed his jurisdiction if he examines the credibility of testimony, and he should not commit a person for trial in the Sessions Court if he is of opinion that notwithstanding direct evidence the case is improbable and the evidence unreliable. In that case, the Sub-divisional Officer had discharged the accused after giving his reasons for so doing.
The District Magistrate remanded the case to him for commitment after taking additional evidence without considering the reasons given by the Sub-divisional Officer. His Lordship, on a perusal of the evidence himself, found that that was not a case in which a prima facie case had been made out. The decision of that case also, therefore rested on the facts of that case. In Rotbhanjan Rai's case, 6 Pat LT 570 : (AIR 1925 Pat 599), the accused persons were tried by a Magistrate in respect of an offence which was triable as a warrant case.
The learned Magistrate discharged the accus ed persons under Section 253 of the Code of Criminal Procedure, but the learned Sessions Judge, on being moved on behalf of the complainant, direct-
ed them to be committed to the Court of Session.
This Court held that in considering whether an accused person, who has been discharger by a Magistrate under Section 253 of the Code of Cri minal Procedure, should be directed to he com mitted to the Court of Session, the Sessions Judge must consider whether it was open to the Magis-
trate to come to the conclusion to which he did come on the materials before him, and that a dit-ferent view can be taken on the evidence would not justify the Sessions Judge to direct commit-td.
It was pointed out that he must come to the conclusion that the finding of the Magistrate is not only wrong put perverse. In that case also, his Lordship, after reading the evidence was convinced that no case had been made out for trial. Apart from that, the discharge order in that case was made under Section 253. of the Code of Criminal procedure in a case triable as a warrant case, which undoubtedly gives a wider power to the Magistrate to pass an order of discharge. Subsection (1) of Section 253 lays down that, if, upon taking all the evidence referred to in Section 252 and making such examination, (if any) of the accused as the Magistrate thinks necessary, he finds that no case against the accused has been made out which, if unrebutted, would warrant his con-viction, the Magistrate shall discharge him.
It is apparent from this provision that under this sub-section the Magistrate has got a wide power to see if the evidence is such as could be said to have made out ro case again.st the accured. The Magistrate, in order to come to the conclusion that no case has been made out against the accused, is certainly entitled to weigh the evidence and to find out on which side the evidence leans. Sub-section (2) of that section itself shows the difference between the power of the Magistrate to discharge the accused person according as the order of discharge may be passed upon taking of the evidence or at any previous stage even without recording any evidence.
That sub-section speaks that nothing in this section shall be deemed to prevent a Magastrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless. If the Magistrate has to discharge the accused under this sub-section, he is not to weigh the evidence in the same manner as he has to weigh the same in discharging the accused under Sub-section (1) of that section. Under Sub-section (2), a Magistrate can discharge the accused only if, in his opinion, the charge is found to be groundless.
In other words, if there are grounds for sustaining the charge, he cannot discharge the accused on the ground that no case against the accused had been made out. The power of discharge under Sub-section (2) is, therefore, not as wide as the power of discharge given to the Magistrate under Sub-section (1) of Section 253. The sections dealing with the power of discharge in an inquiry under Chapter XVIII of the Code of Criminal Procedure are even further restricted as I will presently point out.
The above case, therefore, has no application to the facts of the present case. Moreover, to me it appears that in that case the decision has gone a bit too far in holding that the fact that a different view can be taken on the evidence would not justify the Sessions Judge to direct a committal. Later decisions of this Court have not accepted the correctness of the above principle or law laid down in this case.
7. The Full Bench decision of the Bombay High Court in AIR 1935 Bom 137, in my opinion, is of no assistance to the opposite parties. Counsel for the opposite parties has relied on an observation made in this case that, if the Magistrate 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. But, if this observation is read along with the other observations made in that case, the decision, in my opinion, goes against the opposite parties. It lias been held in that case that, under Section 209 of the Code of Criminal Procedure, a Magistrate has got to consider the evidence and 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, but he has not got to satisfy himself that there is a proper case for convicting the accused; and he is not to try the accused, that being a duty imposed by the Code on the Sessions Court.
It was further held that, if the Magistrate came to the conclusion that there is evidence to be weighed, 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, and that, under Section 437 of the Code of Criminal Procedure, the Sessions Judge may come to the conclusion that the order for discharge was improper nob-only on the ground that it was perverse or manifestly unreasonable and inconsistent with an honest appreciation of the evidence in the case, but also on the ground that the Magistrate had however competently taken upon himself the discharge of a duty which under the Code is entrusted to the Sessions Court, that is to say, the duty of appreciation of evidence of doubtful credibility.
8. On behalf of the petitioner State, reliance has been placed on the case of Moinuddin v. Sheogobind Sahu, AIR 1941 Pat 505; Ganga Prasad v. Bhagwat Deo, AIR 1942 Pat 38, Bhola v. Kaushalya, AIR 1951 Pat 453; Tara Singh v. State, AIR 1951 SC 441; AIR 1958 SC 97 and an unre-ported decision of this Court in Rambalam Prasad Singh v. State of Bihar, Criminal Revn. No. 114 of 1960, decided on the 7th of April, 1960 : (since reported in AIR 1960 Pat 507). In Moinuddin's case, AIR 1941 Pat 505 Meredith, J. (as he then was) observed that it is one thing to weigh the evidence with a view to determining whether there are or are not sufficient grounds for com-mitment 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.
His Lordship further pointed out that It is not for the Magistrate to usurp the functions of the Sessions Court, and it is not for him to decide whether upon the whole this witness or that witness should or should not be believed. In Ganga Prasad Naik's case, AIR 1942 Pat 38, Dhavle, J. held that, where the evidence is balanced, however unevenly in the opinion of the Magistrate, then it is a matter which has to be tried, and it is his duty to commit it for trial.
9. In AIR 1951 Pat 453, Sarjoo Prosad, J. (as he then was) after considering various decisions, made the following observation in regard to the function of the Magistrate in an inquiry tinder Chapter XVIII of the Code of Criminal Procedure:
"His function is to see whether the case is a fit one for trial or commitment, and not whether the case is a fit one for conviction. Therefore, if there are two views possible of the evidence, although the Magistrate may be inclined to a view in favour of the accused, he should not, merely on that account, refuse to commit the accused so long as there is a possibility of another view being taken by the Court which finally comes to try him. It is only where, on the evidence on record, no other view is possible except the one in favour of the accused, that a Magistrate should refuse to commit such a case because there is really no evidence for trial."
His Lordship further pointed out that, though it is certainly open to a Magistrate holding a preliminary inquiry in a case triable by a Court ot Session to examine the credibility of the testimony of witnesses, yet he can do so only for the limited purpose of seeing whether there is a prima facie case for commitment, and not for the porpose of corning to a decision whether the accused is actually guilty.
10. In Tara Singhs case, AIR 1951 SC 441, though their Lordships were considering the propriety of the examination of the accused under Section 342 of the Code of Criminal Procedure in a commitment proceeding, they pointed out that all that the Magistrate had to consider was whether under Section 209(1) there were sufficient grounds for committing the accused for trial and not whether, on an appreciation of the whole evidence and other materials in the case, including witnesses for the defence, the charge against him was proved. In Ramgopal Ganpat Rai Ruia's case, AIR 1958 SC 97, a reference to which has already been made, the law on the subject has been pointed out to be as follows:
"In our opinion, the law in India and the law in England, on the question now under consideration appears to be the same. In Halsbury's Laws of England, Volume 10, 3rd Edition (Lord Simonds) in Article 666 at page 365, the law has been stated thus :
'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 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'.
In each case, therefore, the Magistrate holding the preliminary inquiry 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."
11. In the recent decision of this Court in Criminal Revn. No. 114 of 1960: (AIR 1960 Pat 507), referred to above, their Lordships, after considering all these cases and with reference to the facts of that case, observed as follows:
"It is, however, clear that while the Magistrate was within his jurisdiction in weighing the evidence and in exercising his judicial discretion he certainly exceeded the limits of his power when he sought to balance that evidence by considering it as a whole. It was no part of his duty to balance the probabilities and to come to a decision that the case was not fit for conviction. Clearly, two views were possible on the evidence and in these circumstances it was his duty to commit the accused for trial."
12. The decisions referred to above deal with the power of a Magistrate to discharge the accused in an inquiry under Chapter XVII of the Code of Criminal Procedure, as provided in Section 209 of the Code. Just as under Section 253 of the Code, as discussed above, a Magistrate has, under subsection (1) of Section 209, power to discharge the accused, if he finds that there are not sufficient grounds for committing him, and, under Sub-sec-tion (2) of that section, he has power to discharge the accused at any previous stage if he considers the charge to be groundless.
For the reasons already given while dealing with Section 253 of the Code, the power to discharge under Sub-section (2) of Section 209 is a bit restricted, while the power to discharge under Sub-section (1) is a bit wider. But, in the present case, the order of discharge has been made under Section 207-A (6), of the Code, which was introduced in the Code by an amendment in 1956, by Amending Act No. 26 of 1955, which deals with a proceeding instituted on a police report, and is, in my opinion, more restricted than the power given under Section 209 or Section 253 of the Code. It reads as follows:
"207-A (6). When the evidence referred to in Sub-section (4), has been taken and the Magistrate has considered all the documents referred to in Section 173 and has if necessary, examined the accused for the purpose of enabling him to explain any circumstances apparently 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".
The relevant words in this section are "disclose no grounds for committing", whereas in the other section (Ssection 209) the words used are "there are not sufficient grounds for committing". The expression "sufficient grounds" conveys undoubtedly a different and wider meaning than the expression "no ground". In the former case, there will be, no doubt, grounds for committing the accused, but it has to be seen whether they are sufficient or not, while in the order of discharge under Section 207-A (6) it is only when there is no ground at all that the Magistrate is entitled to pass the order of discharge.
13. On a consideration of the authorities and the provisions of the Code of Criminal Procedure, referred to above, my concluded opinion is that in an inquiry under Chapter XVIII of the Code ot Criminal Procedure of an offence exclusively triable by a Court of Session, in a proceeding instituted on police report, the Magistrate can pass an order of discharge only if there is no ground at all for committing him to the Court of Session; in other words, the evidence is such that no Court can make out a point from it for making an order of commitment, if there is evidence which discloses grounds for commitment, the jurisdiction of the Magistrate ceases, and he has no option but to pass an order committing the accused to stand his trial before the Court of Session.
14. Applying the above principle to the facts of the present case, it has to be seen whether the accused persons should have been committed to the Court of Session Or not. In order to come to any conclusion in this regard, I may have to consider the merits of the case, but that will prejudice the case of the parties. I, therefore, do not propose to deal with the same in detail. I may only mention that the evidence that has been given in this case does disclose a prima facie case against the accused persons, and the learned Magistrate was not justified in rejecting them as not disclosing even a prima facie case. The learned Additional Sessions Judge has clearly observed in his judgment that a different view could be taken by another Court, and, that being so, it is a fit case in which the accused persons should have been committed to stand their trial before the Court of Session. (After going through the evidence on record his Lordship held that the evidence disclosed prima facie case in which an order for commitment should have been made.)
15. Mr. Banerjee, appearing for the opposite parties, has then contended that the revision application is barred by time. The order of the Magistrate discharging the accused persons was passed on the 5th of June, 1959. The revision application before the Sessions Judge was made soon after, on the 12th of June, 1959, and it was dismissed by the Additional Sessions Judge on the 1st of October, 1959. The present application was filed in this Court, as already stated, on the 16th of December, 1959, that is, about two weeks after the 60th day of the order of the Additional Sessions Judge.
Learned counsel for the opposite party has contended that the period of limitation for making an application in revision is only 60 days, and the present application, having been filed beyond 60 days, should have been dismissed. No limitation is prescribed in the Indian Limitation Act for filing a criminal revision. But, as pointed out in Kelu Patra v. Iswar Panda, 11 Pat LT 18: (AIR 1929 Pat 404), it is the practice of this Court not to entertain, save under the most exceptional circumstances, an application for revision of a criminal case after the expiry of 60 days from the date of the decision or order impugned.
In that case, the application in revision had been filed about six months after the impugned order, and, as appears from the report, the Registrar had admitted it and issued the usual notices with the object of securing for himself, for Sessions Judges and for the Bar guidance of the Court on the question of the time limit for applications in revision. Thus, that case was admitted only for the purpose of finding out the period of limitation for such applications. But, even on merits, the petitioners in that case had no case.
This case followed by a Single Judge of this Court is Syed Zafar Ahsan v. Jugeshwar Bux Roy, 41 Cri LJ 171: (AIR 1940 Pat 135), in which his Lordship dismissed the revision application mainly on merit, but also referred to the practice of this High Court for not entertaining an application beyond 60 days of the impugned order. In that case also, the application had been filed about tour months after the impugned order. There is no doubt that this practice has been followed all through by this Court, and this Court does not, ordinarily, entertain an application filed beyond 60 days of the impugned order.
Different considerations, however, arise when such an application, has already been admitted by the Court. As already observed, there is no period of limitation prescribed in the Indian Limitation Act, and the matter rests only on the practice of this Court. Undoubtedly, therefore, this Court has got the discretion to condone the delay in proper cases, as has also been pointed out in the two cases referred to above. It must, therefore, be taken that, once the case has been admitted by this Court, the delay has been condoned.
It is not necessary that there should be an order condoning the delay. The mere admission of an application filed beyond 60 days indicates that the delay, if any, must have been condoned by the Bench which admitted it. Moreover, once the criminal revision has been admitted, it has to be decided on merits, and it cannot be thrown out simply on the ground that it was filed beyond 60 days. The above view is amply supported by decisions of this Court.
In Lalo Mahto v. Emperor, AIR 1942 Fat 150, Varma, J. held that, when the application has been admitted, the question o£ limitation is not of much importance in a criminal revision about which no limitation has been fixed by statute. In Bibi Zainab v. Anwar Khan, AIR 1946 Pat 104, a similar view has been taken by Pande, J., who has held that, once a petition has been admitted by the Court, it has got to be considered on its merit, and the plea of limitation does not apply, particularly when there is no period prescribed by the statute for such application.
16. In the present case, the application was listed for admission with a note of limitation. Therefore, when this Court admitted the application, the delay, if any, must be deemed to have been condoned by the Bench at the time of admission. That being so, the point raised by counsel for the opposite parties in regard to limitation is rejected.
17. For the reasons given above, I set aside the order of discharge passed by the Magistrate in this case and direct him to commit the opposite parties to the Court of Session to stand their, trial under Sections 307/34 and 148 of the Indian Penal Code. The rule is, accordingly, made absolute.