The power of a Magistrate to discharge an accused person under Section 207-A(6) of the Code of Criminal Procedure is limited to cases where there is no ground at all for committing the accused to the Court of Session.

R.K.Choudhary, J.

1. This application is directed against an order of discharge passed by Mr. J, Singh, Magistrate First Class, Patna City, dated the 5th of June, 1959.

2. The prosecution case is that, on the night of the 26th o£ March, 1959, at about 10-15 p.m. Rajbahadur Rai alias Chhote Rai (P. W. 3) was taking betel at the shop of Raghunath (P. W. 1). The opposite parties came from the east in a car, bearing No. BRA 261, belonging to opposite party No. 1, Bipat Gope. Some more persons also came on a tandem. Bipat and Lakhan had chhuras, Misri and Chlandrika had garasas, and Bideshi had a lathi. The persons who came in the tandem were also armed with lathis and bhalas, but they could not be identified. Bipat ordered his men, including opposite parties 2 to 5, to kill Chhote, on which all of them ran at him, Chhote fled westwards, but he was waylaid by Chandrika and others. They pushed him, and took him towards Bipats garage. Near the gate of the garage, Bipat again said to his men to kill Chhote, and he himself aimed a blow at his panjara, but it hit his back due to bodily movement. Misri gave a garasa blow on his head, and Chandrika gave a garasa blow on his left leg. Bideshi gave three lathi blows on the same leg, and Lakhan gave a chhura blow at his neck, but Chhote warded off the blow of Lakhan with his forearm, and so the blow hit his chin and the left hand.

Again Misri gave a garasa blow on his head, and thereafter, he became unconscious. After the assault, the opposite parties dragged Chhote to the road near the shop of Sant Singh, and then they boarded the car and the tandem on which they had come, and fled eastwards. Sheokumar Rai (P. W. 8), a brother of Chhote, and Raghunath (P. W. 1) the betel-vendor, took Chhote to the thana, and, as Chhote was not able to speak, Raghunath gave a statement, which was recorded as the first information report. After preparing injury report., Inspector N. N. Verma (P. W. 9) sent him to the Patna City hospital, where Dr. R. K. Verma (P. W. 7) gave first aid to him, and finding his injuries to be serious, he forwarded him to the Patna, Medical College Hospital tor necessary treatment. There, Dr. P. K. Verma (P, W. 4), a junior House Surgeon, examined him at 1.10 a.m. on the 27th of March, 1959 in the Emergency Room of the Surgical Section.

3. After investigation, charge sheet was submitted against the opposite parties under Ss. 307/34 and 148 of the Indian Penal Code. The learned Magistrate, on a consideration of the evidence, found that no case had been made out by the prosecution for committing. the opposite parties to the Court of Session. He, accordingly, discharged them under Sec.207-A(6) of the Criminal Procedure Code. The State, being aggrieved, filed a revision application before the Sessions Judge at Patna, which was heard by the Additional Sessions Judge, Second Court, there. He agreed . with the view taken by the Magistrate in regard to his finding, although he observed that, upon the same evidence, some other tribunal might come to a different view. He, accordingly, dismissed the revision application on the 1st of October 1959. The State has, therefore, filed the present application in revision in this Court on the 16th of December, 1959.

4. Mr. Verma, appearing for the State, has pressed an argument that the offence under Sec.307/34 of the Indian Penal Code was exclusively triable by a Court of Session, and the Magistrate, in an inquiry under Chapter XVIII of the Code of Criminal Procedure, had only to see if the evidence on the record was such as could prima facie be taken to be a ground for committing the accused persons. In other words, his contention is that the Magistrate dealing with the commitment proceeding has only to find out if there was any prima facie evidence against the accused tor being committed to the Court of Session to stand his trial, and not to weigh the evidence, and thus usurp the function of the Court of Session. Mr. Banerjee, appearing f