A Magistrate cannot discharge an accused under S. 207A (6) of the Code of Criminal Procedure if there is a prima facie case against the accused.

Judgment

HIDAYATULLAH, J. : This is an appeal by special leave against an order of the High Court of Patna, 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.

2. 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.

3. Before the order of discharge was made, the Magistrate heard the evidence of nine witnesses 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 Yadav (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 ease, 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 went beyond the powers conferred upon him of enquiring into the case with a view to committing it to the Court of Session

4. 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 Magistrate must follow in an enquiry 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 in S. 173 of the Code of Criminal 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 accused is given by sub-s. (5) a right t