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PETITIONER: BIPAT GOPE

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT: 01/02/1962

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. SHAH, J.C.

CITATION:  1962 AIR 1195            1962 SCR  Supl. (2) 948  CITATOR INFO :  E          1967 SC 740  (18)  R          1970 SC1015  (6,7,8)  R          1975 SC 146  (8)

ACT:      Criminal  Procedure-Committment   proceeding- Order of  discharge by  Magistrate,  First  Class, after trying  the whole  case -Procedure  under s. 207A(6), Criminal  Procedure Code  followed-If  in excess of jurisdiction-Code of Criminal Procedure, 1898 (Act V of 1898), s. 207A(6).

HEADNOTE:      In proceedings  under s.  207A(6) of the Code of Criminal  Procedure the  Magistrate  discharged the accused  after recording  the evidence  in the case. The  High Court  on revision  set aside  the order and  directed the  Magistrate to  commit the accused  to   stand  trial  before  the  court  of session. The  Magistrate examined  witnesses, held spot inspection.  He did  not stop  to find out if there  was  evidence  which,  if  believed,  would establish, at  least, a prima facie case, but went on further  to disbelieve  that  evidence,  by  an elaborate and  painstaking process of examination, in aid  of  which  he  brought  to  bear  his  own appraisal of inconsistencies, improbabilities etc. In short,  he tried the whole case from one and to the other  and established  his point  in a fairly elaborate order. ^      Held, that the jurisdiction conferred by sub- s. (6) of s. 207A, does not entitle the Magistrate to try  the case  on his  own, and  forestall  the decision of  the court  of session.  The order  of discharge passed  by  him  in  the  present  case, therefore, was in excess of jurisdiction, and must be set aside. 949

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JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION  :  Criminal Appeal No. 153 of 1960.      Appeal by special leave from the judgment and order dated July 28, 1960, of the Patna High Court in Criminal Revision No. 1243 of 1959.      Sarjoo   Prasad,    B.K.    Banerjee,    P.K. Chatterjee, and A.K. Nag, for the appellants.      S.P. Varma, for the respondent.      1962. February  1.-The Judgment  of the Court was delivered by      HIDAYATULLAH, J.-This is an appeal by special leave against an order of the High Court of Patna, by which  an order passed by the Magistrate, First Class, discharging the appellants under s. 207A(6) of the  Code of Criminal Procedure, was set aside, and the  Magistrate was  directed  to  commit  the appellants to  the Court of Session to stand their trial under ss. 307/34 and 148 of the Indian Penal Code. The  only question that is argued is whether the High  Court was justified in setting aside the order of  the Magistrate, which, it is claimed was passed in  the proper exercise of the jurisdiction conferred by s. 207A(6) of the Code.      The facts  of the  case,  in  brief,  are  as follows: On  March 26,  1959, at  about 10-15 p.m. one Rajbahadur  Rai alias  Chhote Rai, was alleged to have  been assaulted  by the  appellants  at  a place where  Chhote Rai  was sitting,  at the  pan shop of  one Raghunath  Prasad. The appellants are said to  have arrived there in a private car and a tandem, and  after assaulting  Chhote Rai, to have gone   away   in   these   two   vehicles.   After investigation,  the   appellants  were  prosecuted under ss. 307/34 and 148 of the Indian Penal code, with the result already mentioned.      Before the  order of  discharge was made, the Magistrate heard the evidence of nine witnesses 950 including Chhote  Rai and Raghunath, who had given the first  information report.  The witnesses also included two  other alleged eye-witnesses, Bhushan Singh (P.W. 2), and Sheonandan Yadev (P.W. 6). The Magistrate,  after   recording  the  evidence  and holding a spot inspection and hearing the parties, discharged the appellants as he was of opinion (in his own words)-           "in view  of the  aforesaid  discrepant,      unreliable   and    incredible   and   highly      interested prosecution evidence, no Court can      consider it worthwhile prima facie even for a      trial. In  a case  of this  nature, it is the      legal obligation of a Magistrate to discharge      the accused persons, as discussed above." The Magistrate reached this conclusion on a fairly long  appraisal  of  the  evidence  in  the  case, discussing it  from the  angle of  credibility  of witnesses, their antecedents, the probabilities of the case,  the nature  of the  alleged weapon, the medical evidence  and so on. In short, it will not be wrong to say that he tried the case, instead of finding  out  whether  there  was  no  ground  for sending up  the appellants  to stand  their  trial before the  Court of  Session. The  High Court, in the order  under appeal,  held that the Magistrate

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went beyond  the  powers  conferred  upon  him  of enquiring into  the case with a view to committing it to the court of Session.      Section 207A is a new section, which has been introduced  by  the  Code  of  Criminal  Procedure (Amendment) Act,  1955 (26  of 1955). It lays down the procedure which the Magistrates must follow in an enquiry  in proceedings  started  on  a  police report, preparatory  to commitment of cases to the Court of  Session. Sub-sections  (1), (2)  and (3) deal  with   the  fixing   of  dates,  issuing  of processes  and   ensuring  that   copies  of   the documents referred  to is  s. 173  of the  Code of Criminal 951 Procedure have been furnished to the accused. Sub- section (4)  then enjoins upon the Magistrate that he shall  proceed to  take the  evidence  of  such persons,  if  any,  as  may  be  produced  by  the prosecution as  witnesses to the actual commission of the  alleged offence,  and also  enables him to take the  evidence of any one or more of the other witnesses for  the prosecution as he considers, in his opinion,  necessary. The  sub-section  divides the witnesses into two categories, viz., witnesses to the  actual commission of the offence and other witnesses like  formal  witnesses,  or  those  who cannot depose  to the  actual  commission  of  the offence. Of  the first  category, those  that  the prosecution produces,  must be  examined; but  the other witnesses  may  be  examined,  only  if  the Magistrate considers it necessary. It seems, prima facie, that the prosecution cannot insist on their examination. An  accuses is  given by  subs. (5) a right to  cross-examine  the  witnesses,  who  are examined, and  the prosecution  can also reexamine them.  Then   comes  sub-s  (6),  which  reads  as follows:-           "When  the   evidence  referred   to  in      subsection  (4)   has  been   taken  and  the      Magistrate has  considered all  the documents      referred to  in  sections  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 this  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."           This sub-section, it is contended, gives the 952 Magistrate the option not to commit an accused but to discharge him, if he is of opinion, for reasons to be  recorded, that  the evidence  discloses  no grounds for  committing the accused person, unless it appears  to him that the person should be tried before  himself  or  some  other  Magistrate.  The Magistrate, in  this case,  thought that the power

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conferred upon him by this sub-section enabled him to examine  the evidence thoroughly, and if it did not satisfy  him, to  discharge the  accused. This view of  the Magistrate  was not  accepted by  the High Court.      Mr.  Sarjoo   Prasad  for   the   appellants, contends, on the basis of the ruling of this Court in Ramgopal  Ganpatrai Ruia v. The State of Bombay (1), that the course followed by the Magistrate in determining whether there was credible evidence or not was  the right  course, and  points to certain passages in  the judgment  in the  above  case  as supporting  his   proposition.  The   cited   case interpreted  s.   209  of  the  Code  of  Criminal Procedure, which,  after amendment  of the Code by Act 26  of 1955, deals with proceedings instituted otherwise than on a police report, and under which the Magistrate  can. discharge  an accused  if  he finds that  there are  not sufficient grounds" for committing the accused person for trial. The words of the  two sections  are not  the same, and it is possible to say that the force of the two sections is also  not the  same, and  that s.  209 gives  a power to  enter upon  the merits  of a  case in  a manner which s. 207A does not warrant. 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 of ambit of s. 207A and contrast it with that of s.  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 s. 207A than under 953 s. 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 Prasad fairly concedes, s. 207A (6)  cannot be  carried. Put  in other words, the section can only mean that if there is a prima facia case  triable by  the Court  of Session, the Magistrate must commit the accused to the Court of session to stand his trial. What those cases would be,  which   would  satisfy   the  test,  may  not generally be stated here, because, in our opinion, this case  is far  from the borderline, where only difficulties are likely to be met.      In this  case, we  are clear, on a reading of the reasons  recorded by  the Magistrate,  that he did not  stop to  find out that there was evidence which, if  believed, would  establish, at least, a prima facie case but went on further to disbelieve that evidence  by  an  elaborate  and  painstaking process of examination, in aid of which he brought to bear  his  own  appraisal  of  inconsistencies, improbabilities etc.  In short, he tried the whole case from one end to the other and established his point, as  has been  said  already,  in  a  fairly elaborate order.  In this  process, he disbelieved the   injured    person,   other    eye-witnesses, contrasted the  oral testimony  of how the offence took place  with the  medical evidence and his own

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conclusions drawn  from an  inspection of the site and other matters, to numerous to detail here.      In our  opinion,  whatever  the  jurisdiction conferred by  sub-s.(6) of  s. 207A,  it does  not entitle a  Magistrate to  try the case on his own, and  forestall   the  decision  of  the  Court  of Session, and this is what the Magistrate, is fact, did here.  We, therefore,  agree that the order of discharge passed  by him  was  in  excess  of  his jurisdiction, and it is 954 hardly necessary  in this  case to  show how far a Magistrate can  go to find that there is no ground for committing the accused to stand his trial in a Court of  Session. We  see no  reason to interfere with the  order of the High Court, and dismiss the appeal      It is  a matter of regret that much delay has taken place in this case, and it may harm the case or the one side or the other. We hope that now the case will  be heard  from day to day, and disposed of, as  expeditiously as possible. We further make it clear  to the Court or courts dealing with this case that  any expression of opinion on the merits of the  case whether by us or by the High court or the Magistrate, who first heard it, or else where, in this  order or the orders preceding this, is to be  completely  ignored  and  the  case  shall  be decided without  being influenced  in any  way  by such expression of opinion.                                  Appeal dismissed.