A Magistrate holding a preliminary enquiry in a case triable by a Court of Sessions can examine the credibility of witnesses' testimony only to determine whether there is a prima facie case for commitment, not to decide whether the accused is guilty.

Sarjoo Prasad, J.

1. The petnr in this case has moved against an order of the Dist Mag of Champa-ran directing the commitment of the petnr accused for trial before the Ct of sessions for a charge under Sec.376, I. P. C. The Dist Mag: has passed the order of commitment after setting aside an order of discharge passed by Mr. A. A. Khan, Mag of the First Class, Bettiah, who held an enquiry under Chapter XVIII of Cr. P. C.

2. The allegation against the petnr is that on 20-9-1949, at about 9 a.m. he committed rape upon the complainant Mt. Kaushalya. This occurrence took place in village Telpore about eight miles off from police station Laurya & twenty-two miles away from the Sub-division of Bettiah. The complaint was lodged by the girl on 21-9-1949, in Ct, which the Sub-divisional Mag referred for investigation to the local police without taking any steps to have the girl examined by a medical officer. The Sub-Inspector of Police received the order on 27-9-1949 when he recorded a first information & proceeded to investigate the case. The medical examination of the girl actually took place on 1-10-1949 almost ten days after the occurrence. The evidence of the doctor is that the girl is below the age of 16 years. A number of prosecution witnesses have been examined in the case, two of whom purport to be eye witnesses to the occurrence itself; & the evidence of the girl as also that of the eye-witnesses is sought to be corroborated by the evidence of some other witnesses to whom the girl stated about the occurrence. The learned Dist Mag has observed that prima facie the evidence of the eye witnesses is corroborated by some of the circumstances in the case, such as the absconding of the accused & the recovery of broken pieces of bangles from sugar cane field. He, therefore, thinks that prima facie it was a case which should have been committed for trial & the learned Mag acted erroneously in discarding the prosecution evidence on balancing of probabilities. The learned Dist Mag has pointed out that although a committing Ct has every right to weigh the evidence before him in order to find out whether a prima facie case has or has not been made out for the trial of the accused, lie has no right to substitute his own judgment for the final judgment of the Ct which is competent to hold the trial. He has also pointed out certain errors in the judgment of the learned Mag in his appreciation of the evidence on the record.

3. It is unnecessary for me to discuss the merits of the evidence & to make any observa tion which may be calculated to prejudice the trial of the accused. It seems to me that the view taken by the learned Dist Mag of the functions of a committing Ct is perfectly jus tified & is supported by numerous authorities of this Ct as also of other Cts. The main func tion of a committing Ct is to see whether the evidence is such that the accused should be sent up for trial or not. If he thinks that the evidence is of such a nature, then merely be cause as a trying Ct, he himself might not have been prepared to accept that evidence, he cannot discharge the accused. It may be that the trying Ct may take a different view of the evidence from the one which has been taken by the Mag himself. His function is to see whether the case is a fit one for trial or commitment, & not whether the ease is a fit one for conviction. Therefore, if there are two views possible of the evidence, although the Mag may be inclined to a view in favour of the accused, he should not, merely on that account refuse to commit the accused so long as there is a possibility of another view being taken by the Ct which finally comes to try him. It is only where, on the evidence on record, no other view is possible except the one in favour of the accused, that a Mag should refuse to commit such a case because there is really no evidence for trial. These propositions appear to have been well settled by various decisions of this Ct. In Moinuddin V/s. Sheogobind Sah