In Re: Mania Manikha Padayachi and Others

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 Cr. P.C. (and not 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 First 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 Cr. P C. The learned District Magistrate has in his order set out as follows: ""I

direct that u/s 436, Cr. P.C., 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 first prosecution witness and the only persons who were made respondents to the petition were accused Nos. 1 to 13 and accused No. 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 Nos, 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 Nos. 14 to 17 and 19 to 23

from the scope and operation of the order was due merely to a mistake but nonetheless serious so far as those accused were concerned. As those

accused, namely, accused No. 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 Nos. 1 to 13 and accused

No. 18."" The other accused, namely, Nos. 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 Nos. 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 Ch. XVIII of the Cr. P.C. 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 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. This position was also sought to be supported by the learned Counsel for the petitioners by

reference to a number of decided cases 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 Cr. P.C. 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 Pillai 23 Ind. Cas. 741 : 15 Cr. L.J. 373 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 Shanbhogue 28 Ind. Cas. 643 : 16 Cr. L.J. 307 :

(1915) M.W.N. 233, Justice Tyabji states that what the Magistrate has to see is whether the prosecution has adduced such evidence as is not on

the fact 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 Chakkili v. Palaniswami Goundan 53 Ind. Cas. 817 : 20 Cr. L.J. 817 : 10 L.W. 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 Tirumali Vandaya Thevar 65 Ind. Cas. 993 : 23 Cr. L.J. 209 : 42 M.L.J. 49 : AIR(1922) (M.) 43 : 16 L.W. 460 :

(1922) M.W.N. 13 : 30 M.L.T. 72, 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 the learned Judge speaks as in agreement with the observations of Justice Bakewell in the case of

National Bank of India, Ltd. v. Kothandarama Chetti 21 Ind. Cas. 129 : (1913) M.W.N. 728 : 14 M.L.T. 200 : 14 Cr. L.J. 529.

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 bat 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 sot up. In para.

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 Cr. P.C."" 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 Nos. 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 Nos. 1 to 13 and 18, 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 these accused, therefore, the

petition is rejected.

The accused Nos. 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 of Rs. 250 each.