In Re: Mania Manicka Padayachi and Others

Srinivasa Aiyangar, J.—I am asked in this Criminal Revision Case to revise the order of the District Magistrate of Trichinopoly by which

under the provisions, as I take it, of Section 437 of the Criminal Procedure Code (and not Section 436 as it appears in the papers) he directed,

setting aside the order of discharge passed by the First Class Magistrate of Udayarpalayam, that all the accused in the case be committed for trial

to the Sessions Court of Trichinopoly.

The order of the 1st Class Magistrate of Udayarpalayam was passed as the result of the enquiry into the case which was triable by a Court of

Session and under the provisions of Section 209, Clause 1 of the Criminal Procedure Code. The learned District Magistrate has in his order set

out as follows : "" I direct that u/s 436, Criminal Procedure Code, that the accused be committed for trial for the offences for which they have been

charged. Warrants will issue for the arrest of the accused and their production before the Court of Session."" This order was made by him on a

Criminal Revision Petition filed on behalf of the 1st prosecution witness and the only persons who were made respondents to the petition were

accused 1 to 13 and accused 18, and the prayer was that those respondents should be arrested and ordered to be committed for trial before the

Sessions Judge of Trichinopoly. The other accused in the case namely accused 14 to 17 and 19 to 23, were not made respondents to that petition,

and no notice appears also to have been ordered to or served upon them. In these circumstances, it must be fairly clear that the order of the

District Magistrate to the effect that all the accused should be arrested and committed for trial to the Sessions Court without excluding accused 14

to 17 and 19 to 23 from the scope and operation of the order was due merely to a mistake but none the less serious so far as those accused were

concerned. As those accused, namely accused 14 to 17 and 19 to 23, were not respondents to the Criminal Revision Case and were not required

to be committed for trial under the petition the District Magistrate was considering and as in any case they have had no opportunity of showing

cause why an order of commitment should not be made against them also, the order of the District Magistrate so worded as to include them also is

clearly wrong. The order therefore will be modified by substituting in the operative portion for the word ""accused"" the words "" accused 1 to 13 and

accused 18."" The other accused, namely 14 to 17 and 19 to 23, if already arrested under the order of the District Magistrate will be forthwith

released and set at liberty. The order of commitment so far as the said accused 14 to 17 and 19 to 23 are concerned is also set aside. As regards

the other accused, however, there is no such irregularity in the order of the District Magistrate and they were further parties respondents to the

Criminal Revision Case filed before him and it was after hearing them that the learned District Magistrate has passed the order in question.

The learned Counsel here Mr. Ethiraj has contended before me that the order of the District Magistrate directing their commitment also was

wrong and should be set aside. He based his contention on two grounds : firstly, that the District Magistrate erred in his view of the law regarding

the duty and function of the committing Magistrate conducting the preliminary enquiry ; and secondly, that in any case it was not on the merits a

proper case in which the order of commitment should have been made.

It was thus argued before me on behalf of the petitioners that a Magistrate conducting an enquiry under Chapter 18 of the Criminal Procedure

Code was bound to commit the accused for trial before the Court of Session only if in his judgment the evidence before him was such that if

nothing else or nothing more were proved the accused should be convicted of the charge, or, in other words, that the Magistrate was entitled to

discharge the accused if in his judgment the evidence produced before, him was not conclusive of the guilt of the accused. The result of such a

contention would undoubtedly make the enquiry before the Magistrate the first trial and the proceedings before the Sessions Court the second trial

of the accused. It was said that such was, however, the intention of the legislature because there was a provision made in the chapter not only for

the examination-in-chief of the prosecution witnesses but for their cross-examination and re-examination, for the accused calling any witnesses they

might choose, for the Court citing any witnesses of its own motion and so forth. The position was also sought to be supported by the learned

Counsel for the petitioners by reference to a number of decided case mostly of this Court.

It is clear from the Procedure Code that only one trial is contemplated and that the enquiry before the Magistrate in cases triable by a Court of

Session is only in the nature of a preliminary enquiry. Sections 209 and 210 of the Criminal Procedure Code speak only of there being or not being

sufficient grounds for committing the accused for trial. When the legislature speaks of sufficient grounds for committing for trial, it should not be

supposed to have spoken of sufficient grounds for conviction, and similarly when the legislature speaks of there not being sufficient grounds for

committing for trial it should not be supposed to have spoken of there not being sufficient grounds for conviction.

It follows from this that the intention of the legislature clearly is to make a distinction between grounds for conviction and grounds for committing

for trial. Satisfactory proof of the guilt of the accused is the ground for conviction. What then is the ground for committing for trial? Satisfactory

evidence to go to trial must be regarded as the ground for committing for trial. In fact, the expression in Clause 2 of Section 209 ""considers the

charge to be groundless"" furnishes us with a clue as to the true meaning of the legislature. If the enquiring Magistrate on the evidence before him

comes to the conclusion that the charge is groundless, then it is indicated that he should discharge and not commit for trial. For a charge being

groundless, it is not necessary that there should be no evidence at all of the charge. That will be a case of there being no evidence of the charge at

all and not a case of the charge being groundless. For all practical purposes it may be stated that a charge may be said to be groundless when the

evidence adduced at the enquiry is such that no tribunal, Judge or jury would ever on that evidence convict the accused,. If no reasonable man

taking into consideration the evidence adduced in the case could possibly on such evidence conclude that the accused was guilty, then it must be

taken that the charge is groundless, and in such a case the duty of the enquiring Magistrate is clear to discharge the accused. From this, therefore, it

follows that except in cases where the charge is found to be groundless, that is to say, in other words, where the evidence on the record is such

that no tribunal, Judge or jury would ever convict the accused on that evidence, the enquiring Magistrate is bound to commit for trial. I do not

really understand that in any of the decided cases which were referred to before me in argument a substantially different view was really taken by

any learned Judge. In the case of In re Damappa Palai and Ors. (1914) 23 IC 741. Justice Sadasiva Aiyar says that "" where most of the important

witnesses are totally unworthy of credit according to the Magistrate and where the case itself bristles with improbabilities, the Magistrate would be

right in discharging the accused."" And later on in the same judgment the learned Judge refers to the Sessions trial in such cases being practically

foredoomed to failure. I take it that the learned Judge was merely referring in other words to a case in which no tribunal would convict the accused

on the evidence.

Again in the case of Narasappayya v. Narasayya Shanbogue and Ors. (1915) MWN 233. Justice Tyabji states that what the Magistrate has to

see is whether the prosecution has adduced such evidence as is not on the face of it absolutely incredible in regard to every ingredient of the

evidence that is charged. This differs, if at all, only in form from what I have said.

The case of Karuppa Chekkili v. Palanisami Goundan (1919) 10 LW 630. does not relate to a case triable by a Court of Session and has

therefore no bearing on the present question.

In the case of In re Ponniah Thintmalai Vandaya Thevar and Ors. (1921) 43 MLJ 49. Mr. Justice Kumaraswami Sastriar speaks of there being

a prima facie case and the discretion of the Magistrate and his power to weigh the evidence. I cannot agree that the learned Judge intended to lay

down anything more than that the enquiring Magistrate may discharge if he is of the opinion that the evidence relating to the guilt of the accused is

most untrustworthy. It is significant that that learned Judge while speaking of a prima facie case also adds that it is not the business of the

committing Magistrate to usurp the function of the Sessions Judge or the jury and in that respect that learned Judge speaks as in agreement with the

observations of Bakewell, J. in the case of The National Bank of India, Ltd. v. Kothandarama Chetty (1913) MWN 728.

On the one side there is of course the extreme suggestion that the committing Magistrate is bound to commit if there should be any evidence

whatsoever in support of the charge whatever the quantity or quality of such evidence may be. Equally there is the contention on the other extreme

that the committing Magistrate is not bound to commit unless a prima facie case is made out. On the authorities and on the reason of the thing I

have no hesitation in stating that both these extreme contentions are untenable. If it should be conceded that the committing Magistrate has no right

to usurp the function of the Judge or jury, that is, the function of trying the case itself and deciding whether or not the accused is guilty, it follows

that what the enquiring Magistrate has got to try and ''determine is not whether the case has been made out but only whether there is a case for

trial. It must be held that there is always a case for trial when the evidence is of such a nature that the guilt of the accused can be held to be proved

or disproved only as the result of the valuing and the weighing of the evidence. But, on the other hand, if the evidence be of such a nature that no

reasonable person and no tribunal, Judge or jury would ever on that evidence hold the accused guilty, it follows that there is no case for trial and it

is then a case for the enquiring Magistrate to discharge.

Now in the case before me the enquiring Magistrate has no doubt written a long and considered judgment, but at the same time it is abundantly

clear that he has really mistaken his function. If he had said that the evidence was of such a nature that no Court could possibly on that evidence

regard the accused as guilty, I should not have hesitated to give effect to that opinion more especially having regard to the fact that the Magistrate

saw the witnesses and had an opportunity of judging of their credibility. But what he set himself to decide was not whether there was a case for

trial or, in other words, whether there was any reasonable ground for the charge but whether the prosecution had made out the case set up. In

paragraph 24 of his order he states thus : "" Some of the evidence on the side of the defence appears to be more probable. In the end I consider

that the case against the accused has not been made out and accordingly discharge them u/s 209, Clause 1 of the Criminal Procedure Code."" It

was not his province to decide whether the case had been made out by the evidence, or not. All that he had to do was to find if the charge was

groundless and, if it was not, to commit the accused for trial. It is not merely a case in which the learned enquiring Magistrate has failed to

appreciate his proper function in the case but the whole of his judgment and order would seem to be vitiated by a belief that he was there and then

to decide having regard to the credibility of the witnesses, their statements, etc., whether the case laid had been made out. I cannot consider that

this was a proper course for him to take.

The order of discharge therefore being improper it follows that the District Magistrate was justified in interfering in revision. If I should at the

present stage seek to go into the merits and express my opinion on the evidence, it may operate to the prejudice of the accused. If the order of

discharge was wrong as having been the result of proceeding on a wrong principle, it follows that the District Magistrate was not only competent

but justified in interfering and all that I am now concerned is to see whether the order of the District Magistrate is so clearly wrong as to call for my

intervention. So far as the order of commitment made by the District Magistrate related to accused 14 to 17 and 19 to 23 I have already decided

that the order was wrong and should therefore be set aside. As regards the other accused 1 to 13 and 1.8, not being satisfied that the order of the

District Magistrate was clearly wrong, I do not feel called upon to interfere and with regard to those accused therefore the petition is rejected.

The accused 1 to 13 and 18 who have been committed for trial will be released on bail on their furnishing security to the satisfaction of the

Sub-divisional Magistrate of Udayarpalayam each in his own bond for Rs. 500 with two sureties for Rs. 250 each.