Kishori Mohan Sadhukhan vs Majanali Mondal

N.K. Sen, J.—This Rule directed against an order of Shri S.K. Chanda, magistrate, first class, Basirhat, dated October 4, 1956, discharging u/s 207A(6) of the Code of Criminal Procedure sixteen opposite parties and refusing to commit them for trial by the Court of Session.

The police submitted a charge-sheet under Sections 147/304 of the Indian Penal Code against the opposite parties and the facts alleged were that in mouza Tepul under Swarupnagar police-station the Petitioner Kishori Mohan Sadhukhan had a plot of land which was popularly known as Subzola Banda. This plot of land included several other c.s. plots all forming one compact area having no ails between them. In 1362 B.S. the Petitioner through his men grew crops in those lands. It was stated that on November 18, 1955. some time in the morning the opposite parties with many others came upon the land variously armed and cut the unripe paddy grown upon the land by the complainant Petitioner. The Petitioner''s son Kalo with one Bipin Bala, a neighbour, on arrival at the place objected to the reaping of the paddy whereupon the opposite parties severely assaulted Bipin Bala, who fell down on the land unconscious. Halo cried for help and some neighbours arrived there and apprehended o.p. No. 6, Zeher Mondal, on the spot. Bipin as also Zeher Mondal, opposite party No. 5, were then brought to a neighbouring house where the choukidar was sent for. The injured man was thereafter sent to Habra health centre, where he died on the next day.

It appears that in course of an enquiry under Chapter XVIII of the Code of Criminal Procedure the learned magistrate examined 13, witnesses in support of the prosecution case. Although no less than 9 witnesses were examined as eye-witnesses, the learned magistrate proceeded to enquire in accordance with the provisions of Section 207A of the Code, preliminary to commitments for trial by the Court of Session. He pointed out in his judgment that of the 25 witnesses cited by the prosecution, he examined only 13 and of these 13, 8 were witnesses to the occurrence. He scrutinised the evidence given before him and according to him there were certain circumstances which cast a spell of doubt on the entire case, for example, he pointed out that prosecution witness No. 8 stated that he did not notice blood marks on the paddy field, but almost all the witnesses stated that immediately after the assault Bipin fell on the ground and lay unconscious for some time, when P.W. 11 examined the deceased after about 12 hours, the injured was still bleeding from nose and vomiting blood. From these circumstances alone the learned magistrate was of the view that the entire case could not be true. Then, again, he took serious note of the fact that some of the witnesses who were examined as eye-witness were not produced before the investigating officer at an earlier stage and there was no explanation why the police did not examine them earlier. On the credibility of witnesses the defence argued that they were not witnesses of truth and the learned magistrate found that there was a ring of truth in the argument of the defence. Then, again, on observing the demeanour of certain witnesses the learned magistrate came to the conclusion that they were thoroughly unworthy of credence. The learned magistrate further proceeded to consider whether the witnesses were interested in the success of the case and came to the conclusion that the testimony of certain witnesses were highly interested. He found that their evidence contained concoctions of truths, half truths and untruths. This he found on a comparison of the statements with the police diary. He described the complainant to be a great liar. To sum up the above illustrations it may be pointed out that the learned magistrate thought that his business was to separate corn and chaff and thereafter piece fragments of true facts together which found corroboration in the statements of both the parties. According to him some evidence was reliable and some was not. Having thus assessed the evidence he discharged the opposite parties u/s 207A(6) of the Code.

Mr. Bhattacharjee, who has appeared in support of the Rule on behalf of the Petitioner, has argued that the learned magistrate was entirely wrong in his conception of duties in enquiries under chapter XVIII of the Code, Mr. Sambhu Nath Banerjee, who has appeared for the State of West Bengal, has also supported Mr. Bhattarcharjee and has in addition submitted that the business of a magistrate acting under this chapter was not to assess the evidence in the way as if he was holding the trial but to see if there was some evidence in support of the prosecution case, and if there was, the learned magistrate was not to usurp the function of the jury, whose business it was to believe or not to believe all questions of fact. Mr. Bhattacharjee has cited before me the case of Tara Singh Vs. The State, and has submitted that it was pointed out in that case by their Lordships of the Supreme Court that "all that a magistrate had to consider "was whether u/s 209(1) there are sufficient grounds for committing the accused for trial and not whether, on an appreciation of the whole evidence and other material in the case, "including witnesses for defence, the charge against him is "proved".

It has been argued by Mr. Krishna Binode Roy on behalf of the opposite parties Nos. 1, 2 and 14 that the learned magistrate after Section 207A had been incorporated in the Code was not to be regarded as a mere recording machine, but he was competent, according to the amended provisions of the Code, to weigh the evidence and consider its credibility in order to see whether there was a reasonable ground for conviction if committed.

Mr. Roy submitted that in this case the learned magistrate had considered the evidence of the witnesses that was recorded by him and on a consideration of that evidence he came to the conclusion that there was no prima facie case and that the story of the occurrence bristled with so many improbabilities, incongruities, and discrepancies that no tribunal or jury would believe that an occurrence like this ever took place.

I regret I cannot accept the argument of Mr. Roy. The common requirement for committal in an enquiry under chapter XVIII of the Code is the existence of the prima facie case and to find out whether a prima facie case is in existence, some sifting of evidence is inevitable. The vital point to bear in mind is that the magistrate was not to usurp the function of the trial court or of the jury or to substitute his own judgment. When there was some evidence to put the accused on trial, the question of belief or disbelief will be a matter for the jury.

An examination of the provision of Sub-section (6) of Section 207A of the Code and Section 209 would show that there is no fundamental difference between the two sections as to the powers of the magistrate to discharge an accused person and the circumstances under which he could do so. Under Sub-section (6) of Section 207A it is provided that if the magistrate is of opinion that "such evidence "and documents disclosed no grounds for committing the accused "person for trial he shall record his reasons and discharge him". Under the provisions of Section 209 the magistrate, if he found that there were no sufficient ground for committing the accused persons for trial, record his reasons and discharge him Tara Singh''s case which was cited by the Petitioner was a case in which the provisions of Section 209 were considered, but in my view it enumerates a principle which is equally applicable to orders of discharge under the provisions of Section 207A(6) of the Code of Criminal Procedure.

The learned Sessions Judge, to whom an application was made under the provisions of Sections 435 and 437 of the Code with a prayer that the order and judgment of the learned magistrate be set aside and for direction that the accused be committed to stand their trial before the Court of Session, however, has stated that upon the whole evidence he agreed with the learned magistrate that there was no prima facie case to go to the jury and that as the whole of the evidence completely satisfied him that there had been no miscarriage of justice by the order of discharge complained of, he dismissed the application and upheld the order of discharge passed by the learned magistrate.

In my view, the learned magistrate did in this case what he ought not to have done. It is not the function of a magistrate in enquiries under chapter XVIII to consider whether the evidence was credible or of such a character as would conclusively prove the commission of an offence but he was only to see if prima facie there was evidence to show the commission of an offence. The learned magistrate was not expected to substitute his own judgment on facts which was the exclusive province of the jury. The provisions of Section 207A(6), which were in substance the same as the provisions of Section 209, have nowhere empowered the committing magistrate to scrutinise the facts and the credibility of the witnesses for the purposes of deciding whether or not the accused should be committed for trial or not. The trial was to be held by a Judge and a jury and the magistrate was only to hold an enquiry as to whether or not the case could go to the jury and for this purpose he could not sift or weigh the evidence to ascertain its credibility. I have been taken through the judgment of the learned magistrate as also portions of evidence on which he passed his judgment and I am of the view that the learned magistrate''s order discharging the accused cannot be upheld even on the findings arrived at by the learned magistrate in support of the reasons for the order of discharge. I am, therefore, of the view that this order of discharge should be set aside and the opposite parties--16 in number-be committed to the Court of Session for trial. The learned magistrate is, accordingly, directed to commit the opposite parties under the provisions of Sub-section (7) of Section 207A of the Code after framing a charge in accordance with law. He will thereafter proceed in accordance with the other provisions contained in Section 207A of the Code.

The Rule is made absolute.