Misapprehension of evidence is a valid ground for setting aside an order of discharge, while misappreciation must amount to perversity or manifest unreasonableness to justify interference.

Gruer, J—This is a revision application against an order of the Sessions' Judge, Raipur, passed under S. 436, Criminal P.C., directing further inquiry into the case of the four applicants, Sheoprasad, Dhoorji, Nur Mohammad and Mt. Punia, who had been challaned under Ss. 363, 366 and 376, I.P.C., but were discharged by the Magistrate after hearing all the prosecution evidence and examining them. Sheoprasad is a Marwari business man of some position, about 50 years old, residing at Dhamtari. Dhoorji is a servant in his business and Nur Mohammad is his motor-driver. Mt. Punia, aged about 20, is a Gondin labourer, and the complainant (P.W. 1), whose age is probably 16 or 17, is a married girl, who was an acquaintance of Punia.

2. The case brought against these accused is that on 21st June 1937, Punia enticed the complainant to accompany her to a village called Surid not far from Dhamtari. While they were going along, they were, it seems by pre-arrangement, overtaken by a motor car in which the other accused were seated. The complainant was forcibly dragged into it and driven along for some miles, when she was taken out by Sheoprasad and led to a spot some distance from the road where she was raped by him. The girls were then taken back in the car and set down near the place where they had been picked up. Sheoprasad denied his presence altogether, and the others said that the girls were merely taken for a pleasure drive at their own request. Patras (P. W. 3) sup. ports complainant's story that she was carried away unwillingly and implicates Sheoprasad, while Sher SiDgh (P.W. 4) also made a statement that he saw three men in the car. The complainant's story however was not believed by the trial Court. The Sessions Judge has set aside the order of discharge on two grounds: first, that the proceedings of the lower Court in this case are vitiated by several irregularities leading to the admission of illegal and inadmissible evidence resulting in wrong inferences; secondly, that the prosecution evidence has not been properly appreciated by the lower Court.

3. It is contended for the applicants that the irregularities are either non-existent or of little importance, and that the appreciation of evidence is not a ground for setting aside an order of discharge. Reliance is placed on Sheocharan v. Emperor, 1926 AIR(Nag) 117, for this latter proposition and also on a number of other cases including Nathu v. Emperor,1935 159 IndCas 238, Emperor v. Alam, 1927 AIR(All) 804, Bindeshri Dube v. Emperor, 1920 AIR(All) 266, Lakshminarasappa v. M. Venkatappa,1908 31 ILR(Mad) 133 and Parashram Bhika v. Emperor,1933 AIR(Bom) 158. This last case has been dissented from in a Full Bench ruling, Ramchandra Babaji v. Emperor, 1936 AIR(Bom) 137. This however was a case under S. 437, Criminal P.C., although the same consideration may apply. Vankata Subba Reddi v. Ayyalu Reddi,1909 AIR(Mad) 214 dissented from Lakshminarasappa v. M. Venkatappa,1908 31 ILR(Mad) 133; see also Narayanswamy Naidu v. Emperor,1909 32 ILR(Mad) 220. In Sheocharan v. Emperor, 1926 AIR(Nag) 117, Lakshminarasappa v. M. Venkatappa,1908 31 ILR(Mad) 133 was referred to with approval. S. 436 itself contains no restrictions on the power to order further inquiry, and it is possible that the reported ruling requires reconsideration. In view of the conflict of rulings the question is of some importance. I frame it as follows:

Is it open for a Sessions Judge or a District Magistrate to set aside an order of discharge under S. 436, Criminal P.C., on the ground of misappreciation or misapprehension of evidence, and is there any difference in this respect between S. 436 and S. 437, Criminal P.C.?

4. I refer the case to my Lord the Chief Justice for constituting a Divisional Bench to dispose of this matter.

OPINION

Grue, J.

5. The question referred to us is as follows:

Is it open for a Sessions Judge or a District Magistrate to set aside an order of discharge under S. 436, Criminal P.C. on the ground