Batchelor, J.@mdashThis is an application by one Bai Parvati Who was accused before the Magistrate of having attempted to commit murder by pushing another woman named Jadav into a well.
2. Parvati the applicant was the mistress of Jadav''s husband. A good deal of evidence was summoned for the prosecution and the Magistrate having heard all the evidence tendered came to the conclusion which he expressed in these words: " After having closely gone through the evidence as a whole I find that it will be a mere waste of the Sessions Court''s very valuable time if I commit the accused to it to take her trial there, when I myself see that there are not sufficient grounds for committing her. I, therefore, discharge her u/s 209 of the Criminal Procedure Code."
3. From this order an application was preferred by Jadav to the Sessions Judge who, reversing the Magistrate''s order, directed the Magistrate to draw up a charge against the accused Parvati and commit her for trial u/s 307 of the Indian Penal Code.
4. The question before us now is whether this order of the Sessions Judge should be sustained.
5. Upon the facts underlying this application it is not necessary to say more than this, that the First Class Magistrate went into them at some length, that he examined the evidence of the wit nesses with great care and in the end found that there were no grounds to commit.
6. The Sessions Judge, as we read his judgment, does not materially dissent from the Magistrate in this view of the effect of the evidence tendered. He says that " on a small foundation of probabilities an enormous superstructure of untruth has been gradually built up" and he proceeds to show that most of the important witnesses are totally unworthy of credit. But having thus disposed of the witnesses, he says that there still remains the story of Bai Jadav herself, though at the same time, he admits that " having regard to the relation between the two women it is improbable that Bai Parvati should " have been allowed to accompany Bai Jadav to the well".
7. Upon the Sessions Judge''s own estimate of the value of the evidence we think that the Magistrate was within his rights in ordering the discharge of Bai Parvati and that she should not be exposed to the expense and harassment of a Sessions trial which is practically foredoomed to failure. No doubt, in a case of this kind the line between the Magistrate''s duty and the Sessions Court''s prerogative is not easy to draw. We think, however that it is not difficult to show that in this case the Magistrate did not exceed his authority.
8. The point before us was considered by Mr. Justice Mahmood in In the matter of the petition of Lachman v. Juala ILR (1882) All. 161 where the learned Judge after pointing out that the object of these provisions of law is to save the subject from the prolonged anxiety of undergoing trials for offences not brought home to them, and also to save the time of the Court of Session from being wasted over unsuitable cases, goes on to say: "I am of opinion that the power given to Magistrate u/s 195 extends to weighing of evidence, and the expression '' sufficient grounds'' must be understood in a wide sense. I must not, however, be understood to lay down that this discretionary power should be exercised by the Magistrate without due caution or that he should take upon himself to discharge the accused in Sessions cases in the face of evidence which might justify a conviction. But when the evidence against the accused is such that, in the opinion of the Magistrate, it cannot possibly justify a conviction, I hold that there is nothing in the law which prohibits the discharge of the accused, even though the evidence against him consists of witnesses who state themselves to be eye witnesses, but whom the Magistrate entirely discredits." This construction commends itself to us as an accurate statement of the meaning of Section 209 of the Criminal Procedure Code. Nor do we think that there is anything in it which is in real conflict with what Mr. Justice West said in the case relied upon by the respondent, Queen Empress v. Namriev Satvaji ILR (1887) 11 Bom. 372. For the operation of that decision is limited to this that the Magistrate ought to commit when the evidence is enough to put the party on his trial and " such a case obviously arises when credible witnesses make statements which, if believed, would sustain a conviction." It seems to us that the whole point of this passage lies in attaching due emphasis to the word " credible " and some confirmation of that construction of the decision may be obtained from the observations of the same learned Judge in Dhanjibhai v. Pyarji (1884) U. Cr. C. 201.
9. Apart also from authority it seems to us that the words of the section themselves leave little room for ambiguity. The section provides that if a Magistrate finds that there are not sufficient grounds for committing the accused person for trial he shall discharge him. It is not merely therefore that the Magistrate in the case put is empowered to discharge the accused; he is bound to do so. What then is the case put ? It is the case where the Magistrate finds that there are no sufficient grounds for committing the accused person for trial. He may so find either because there is no evidence whatever or because the evidence tendered by the prosecution appears to him to be totally unworthy of credit. But in this latter case, equally with the former case, it would be his duty under the section to discharge the accused, since the grounds relied on for a commitment would, in his opinion, be insufficient. That is the construction which the words of the section suggest to us and which we understand was accepted by this Court in
10. It is perhaps unnecessary to add that where the Magistrate entertains any real doubt as the weight or quality of the evidence, the task of resolving that doubt and assessing the evidence should be left to the Court of Session; but that is not the case before us now.
11. For these reasons therefore we must set aside the order of the Sessions Judge and restore that of the Magistrate.
