In Re: Ponniah Thirumali Vandaya Thevar and Others

Kumaraswamy Sastri, J.—The petitioners were charged under Sections 147, 148, 379 and 323 of the Indian Penal Code and the first class

Magistrate of Sivakasi discharged the accused as he was opinion that no prima facie case was made out. On revision the District Magistrate

directed the accused to be committed for trial to the Sessions Court. He was of opinion that if theft was the common object of the rioters the

offence becomes one of dacoity and so triable exclusively by the Court of Session. He was also of opinion that the Magistrate is bound to commit

if there is any evidence in support of the charge.

I am unable to agree with the view taken by the District Magistrate. In the present case the First Class Magistrate has written a careful judgment

in which he discussed the evidence on the side of the prosecution and comes to the conclusion that it is not trustworthy. The District Magistrate

does not go into the evidence and says that the Magistrate''s appreciation of the evidence is wrong, He thinks it would be out of place to go into

the evidence.

Section 209 of the Code of Criminal Procedure gives the Magistrate power to discharge the accused charged with offences triable exclusively

by a Court of Session if after going into the evidence he is of opinion that there are not sufficient grounds for committing the accused person for

trial. To hold that where there is some evidence however untrustworthy in the magistrate''s opinion he is bound to commit a person for trial will be

to make the preliminary enquiry directed by the Code a mere matter of form while it is intended to be a safeguard against false or frivolous cases

being sent up for trial and innocent men from being put to the trouble and expense of undergoing a trial in the Court of Session.

It is no doubt true that all that a committing magistrate has to see is whether there is a prima facie case made out and that it is not his business to

usurp the functions of the Sessions Judge or the Jury and I agree with the observation of Bakewell, J, in The National Bank of India, Ltd. v.

Kodandarama Chetty (1913) M.W.N. 728 so far. I respectfully dissent from his view that the Magistrate cannot draw reasonable inferences from

facts deposed to by the prosecution witnesses where more than one inference can be drawn and agree with the view taken by Sundara Iyer, J.

In re Bai Parvati ILR (1911) Bom. 163 it was held that where the committing Magistrate finds that the evidence tendered for the prosecution is

unworthy of credit it is his duty u/s 209 of the Criminal Procedure Code to discharge the accused, A similar view was taken by Sadasiva Iyer, J, In

Re Danappa Pillai (1914)23 I.C. 741.

It is not as pointed out in 35 Bombay to 3 easy to draw the line between the magistrate''s duty and the Session Court''s prerogative and each

case must be treated on its merits. What the Court has to see is whether the evidence is such as to render the case a fit one for the jury to decide

between conflicting probabilities or whether it clearly points to there being no prima facie case for the accused to meet, In arriving at a decision the

committing magistrate must have discretion and power to weigh the evidence.

In the present case the Magistrate has given excellent grounds for the conclusion he has arrived at. I reverse the order of the District Magistrate.