JUDGMENT Daniels, J.
1. This is an application in revision against an order discharging three persons Raja Bahadur, Raj Narain and Murari Lal who were prosecuted on a charge under Section 302 of the Indian Penal Code of murdering Asghar Ali. There is no doubt that Asghar Ali was murdered on the 23rd of September 1924 at Shahjahanpur. A severe religious riot took place on that date, and it is said that a number of other persons were killed. So far as the evidence in this case goes it appears that one Munna Lal a Hindu, was seriously injured shortly after 10 o'clock and died between 10 and 11. The first report in regard to the attack on him was made at the Kotwali at 10-45 A.M., and he died before he could be conveyed to hospital. The report of Asghar Ali's murder is said to have been made at the Kotwali at 12 o'clock, the time of the occurrence being given as about 11. A special Sub-Inspector, S. Masum Ali, was sent from Budaun a few days later to investigate this case. He had two other similar cases to investigate, and he did not commence the investigation till October 8th. He concluded his enquiry on October 19th and sent in Form B finding that the charge against the accused was not established. A complaint was filed in Court by the deceased man's brother Akbar Ali, and a Special Magistrate, Mr. C.H. Cooke, was deputed to hear the case. After hearing a number of witnesses for the prosecution he framed a charge on February 10th, 1925. He then proceeded to record the evidence of certain, witnesses for the defeno", and under Section 540, Criminal Procedure Code, of M. Ali Husain, Deputy Magistrate, who had been on duty patrolling the city just after Asghar Ali was killed. After considering this evidence and, as he says in his order, on a more careful consideration of the prosecution evidence at leisure, he decided that the prosecution evidence was wholly untrustworthy and that no reliance whatever could be placed upon it. Under these circumstances ho cancelled the charge against the accused.
2. Some argument has been addressed to us as to the duty of a committing Magistrate in cases of this kind, and we have been referred to a number of cases bearing on the subject. It is, in our opinion, well established that if a Magistrate hearing a charge triable by the Court of Sessions comes to the conclusion that the evidence before him is totally untrustworthy and that there is no reasonable possibility of the case resulting in a conviction, he is entitled, and it is, indeed, his duty, to discharge the accused under Section 209, Criminal Procedure Code. The same result follows if he comes to a similar conclusion after framing a charge and hearing witnesses for the defence under Section 213(2). Of course this discretion is to be carefully exercised, land wherever there is a possibility that different Courts might take different views of the evidence, the Magistrate, even though he may himself not think the evidence sufficient for a conviction, should leave it to the Sessions Court to decide. Knox, J, in Het Ram v. Ganga Sahai (1918) 40 All. 615, has too narrowly restricted the functions of a committing Magistrate. We agree with the view of the law stated by Lindsay, J., in Muhammad Abdul Hadi v. Baldeo Sahai A.I.R. 1912 All. 168, which is, so far as we are aware, the only reported case of this Court dealing with an order of discharge passed under Section 213.
3. We have, therefore, to see whether in this case the Magistrate's order of discharge was justified according to the above tests; in other words, was the Magistrate justified in coming to the conclusion that no Court could possibly convict the accused on the evidence before him? The Magistrate has allowed the witnesses to be cross-examined with reference to contradictory statements which they made in the police enquiry. The result of that cross-examination was extremely damaging to the witnesses. In fact if their statements in the police enquiry have been correctly recorded they deprived their evidence in Court of any value. The deceased's brother Akbar Ali, for instance, having named four witnesses as eye-witnesses in the first report, stated in the police enquiry that these were not the eyewitnesses and that he wanted to call differ-out witnesses as having seen the occurrence. Before the committing Magistrate the complainant's Counsel took the line that lie did not ask the Magistrate to rely on the witnesses named in the first report, but wished to rest his case mainly on the evidence of Farzand Ali and Sultan Husain. In this Court we have been asked to ignore the police enquiry altogether and to rely on the statements of Khuda Baksh Nurul Hasan, Ahmadullah and Akbar Ali. This we are not prepared to do. Ahmadullah, we may note, was not examined by the police at all. The complainant gave as a reason for not calling him the fact that he was away from home, but the witness himself in his evidence stated that he was at his house during the whole time the police enquiry lasted. Another point which has impressed the committing Magistrate is that there is considerable doubt as to whether the scene of the occurrence has been correctly placed by the prosecution witnesses. They all with one exception state that Asghar Ali was killed just outside the northern gate of the Jama Masjid. The one remaining witness states that he was killed under a pakar tree only about ten paces to the east of the gate. The Deputy Magistrate, M. Ali Husain, who was patrolling the neighbourhood just afterwards states in his evidence that he found no blood outside the mosque, but he found blood at some distance along the road to the east, and he estimates the distance at 25 yards, though, as he made no note, at the time and his evidence was not given till five months later, his estimate of the distance can only be a very rough one. Having regard to the very destructive criticism of the prosecution witnesses contained in the Magistrate's order we are satisfied that if we directed this case to be committed to Sessions, there is not the least likelihood that it would result in conviction. We accordingly uphold the order of the Court below and dismiss this application.
Sulaiman, J.
4. I concur. Having regard to all the circumstances of this case it is not a fit one in which we should interfere. T, however, wish to guard myself against being understood to dissent entirely from the view expressed by Knox, J., in Fattu v. Fatlu (1904) 26 All. 564, and Het Ram v. Ganga Sahai (1918) 40 All. 615. Perhaps the learned Judge expressed himself too strongly, but the principle underlying his pronouncements seems to be sound. Section 213 uses the expression "not sufficient grounds for committing the accused." This expression is quite different from such expressions as "the ease not proved" or "the accused are innocent." I agree with the view of Lindsay, J., that when after hearing the evidence for the defence the Magistrate comes to the conclusion that their evidence rebuts that produced for the prosecution, or renders it so incredible or unreliable that a conviction will not follow, he may pass an order of discharge, as expressed by him in Muhammad Abdul Hadi v. Baldeo Sahai A.I.R. 1912 All. 168. I also fully accept the statement of the law laid down by my learned colleague in the case of Emperor v. Ganpat Lal A.I.R. 1924 All. 664 that if the Magistrate is satisfied that the charge is without foundation and that there are no sufficient grounds for committing the accused person for trial, he is entitled, and, indeed, it is the duty, to discharge him. This, however, does not mean that the Magistrate is to arrogato to himself the functions of the Sessions Court and try the case as if he were that Court himself. The policy of the legislature seems to be that serious offences should be tried by Sessions Judges, who are ordinarily more experienced. They are the proper Courts for pronouncing an opinion as to the guilt or, innocence of the accused in cases triable exclusively by the Sessions Court. Where, however, the evidence is wholly untrustworthy and the Magistrate is satisfied that it cannot lead to a conviction, he would be perfectly justified in discharging the accused, even though he has already framed his charge. The Magistrate has to see whether there are sufficient grounds of commitment or not. If he is satisfied that the evidence is altogether untrustworthy and not fit to be acted upon, he may discharge the accused. He should not, however, try to weigh the probabilities of the case and then after balancing the evidence on both sides decide whether the guilt of the accused has or has not been conclusively proved.