A Magistrate holding a preliminary enquiry under Chapter XVIII of the Code of Criminal Procedure cannot balance the probabilities and must commit the accused for trial if there are two views possible on the evidence.

R.K.Chaudhuri, J.

1. This is an application in revision for quashing a commitment directed by the learned Additional Sessions Judge of Monghyr, under Sections 437 of the Code of Criminal Procedure. The prosecution case was that on 21-11-59 at about 8 or 8-30 A.M. the petitioners along with others raided the padoy field of the complainant and wrongfully harvested the crop from an area of about one bigha and a half. They are also alleged to have removed this harvested paddy and also some more paddy which had been kept near his dera and set fire to the dera itself. A written complaint about the occurrence was lodged at the police station, The Police after investigation submitted a charge-sheet against the petitioners under Sections 143 and 379 of the Indian Penal Code. On a petition filed by the complainant the learned Magistrate converted the trial into an enquiry under Chapter XVIII of the Code of Criminal Procedure. The prosecution examined altogether five witnesses to prove the occurrence including the arson.

The learned Magistrate found that there was prima facie evidence to show that offences under Sectionss 143 and 379 of the Indian Penal Code had been committed. Regarding arson he, however, took the view that it was an embroidery on the main prosecution case. This finding was based on what he considered to be certain improbabilities regarding the story of arson as laid in court. He pointed out that the allegation about arson was mentioned last in the written complaint and did not mention who in fact had set fire to the dera although at the trial specific evidence was led to show that it was petitioner Rambalam who had done so. He also referred to the evidence of the Assistant Sub Inspector of Police as to what he saw on the spot in the course of his investigation. This officer stated that he found beaps of ashes at the site of the dera and bamboo poles and Khatia pauas with patti thereon.

He did not find any trace of any burnt marwa nor were the "extremities of the posts or signs of eaves water" shown to him by removing the ashes, from the place." He further stated that he did not find any unburnt part of any wooden posts in the ash or any trace of burnt Khatia, sutri or beds. He also noticed some freshly kept earth on the ash heap. The learned Magistrate also referred to the fact that a school building situated nearby had not caught fire. Referring to all these circumstances the learned Magistrate observed that the story of the complainant was absurd and unbelievable. He took the view that "as there is not only no probability but no possibility of their conviction under Sections 436 of the Indian Penal Code" there was no ground for committing the accused persons under that section. He accepted the evidence of the prosecution witnesses with regard to the rest of the occurrence and held that a prima facie case under Sections 143 and 379 of the Indian Penal Code had been made out against the petitioners.

Since both these offences were triable by him the learned Magistrate framed charges under those Sectionss and ordered that he would try them himself. Aggrieved by this order the complainant moved the Sessions Judge of Mcnghyr. It was contended on his behalf that as there were sufficient grounds for charging petitioner Rambalam with the offence of arson he must be deemed to have been improperly discharged under that section. The learned Additional Sessions Judge, who heard the revision observed that as many as five witnesses had deposed that opposite party Rambalam had set fire to the dera of the petitioner. On a review of the evidence the learned Judge came to this conclusion: "Having considered all the aspects of the case, I am of opinion that the prosecution has established a prima facie case about Rambalam Singh having set fire to the Dera. In my opinion, there can be little doubt that there was sufficient ground for committing the accused persons for trial and the learned Magistrate was not justified in discharg