1969 P Cr (PLP)

A. M. Chowdhuty for the Opposite‑Party. Dates of hearing : 11th and 12th November 1968. This Rule is directed against an order dated 28‑12‑66 passed by the learned Sessions Judge, Rangpur under section 437, Cr. P. C. setting aside the order of discharge under section 209, Cr. P. C. and directing the Magistrate to commit the accused persons to the Court of Session for trial. The complainant‑opposite‑party Ansaruddin lodged a First Information Report with the police at Hatibandha Police Station, Rangpur alleging that on 18‑3‑66 at 2 a.m. the accused‑petitioners and others forming an unlawful assembly, armed with various weapons, attacked the house of the complainant and assaulted the complainant and his wife. On hearing hue and cry one Anaruddin, a brother‑in‑law of the complainant came to their rescue but the accused persons beat him with bamboo was mercilessly. The victim fell down senseless and expired on the next day on his way back from the local dispensary. The police investigated into the case and submitted charge‑sheet against the accused‑petitioners and others under section 147/302, P. P. C. The matter in normal course was taken up by Mr. S. A. Chowdhury, Magistrate, 1st Class, Rangpur for enquiry under Chapter XVIII of the Code of Criminal Procedure. 11 witnesses were examined in the case on behalf of the prosecution. The learned Magistrate found no materials to commit the accused persons to the Court of Sessions and accordingly discharged them under section 209, Cr. P. C. by an order dated 30‑8‑

66. The complainant challenged the propriety of the said order of discharge and filed a petition before the Sessions Judge, Rangpur under section 437, Cr. P. C. for directing the learned Magistrate to commit the accused persons to the Court of Sessions for trial. The learned Sessions Judge on appraisal of the evidence and materials on record found a good prima facie case against the accused persons and directed the learned Magistrate to commit the accused to the Court of Sessions for trial under section 147/304/34/109, P. P. C. The accused‑petitioners being aggrieved thereby moved this Court under section 439, Cr. P. C. and obtained the present Rule. P. W. I Ansaruddin is the informant in the case. The evidence of P. W. 1 shows that accused Pahar and Jamila first came upon the house of the complainant and tried to set fire to his dwelling but and simultaneously the other accused, Jamir, Jabbar, Bachcha, Shamsher and others, armed with various weapons, came to the spot in a rioting mode and started assaulting them. When the deceased Anaruddin obstructed them, the accused Pahar, Jamir, Jabbar and Bachcha beat him with bamboo ruas (lathis). The evidence of this witness has been corroborated by P. Ws. 3, 6 and 7 on material particulars. P. Ws. 4 and 5 have also corroborated the prosecution case to a great extent. The doctors. P. Ws. 2 and 9 have also supported the prosecution story. Thus there are good prima facie materials to make out a case against the accused, at least, under section 147/304/149, P. P. C. But the learned Magistrate has discharged the accused persons on the grounds that some omissions were made in the F. I. R. regarding the particular assailants of the deceased Anaruddin, that the P. Ws. omitted to mention some important facts to the I. O. and that the recognition of the accused in the darkness of the night was not possible. It should be pointed out here that out of the same occurrence two counter cases were cropped up and both the cases were in the Court of the said learned Magistrate. Thus the occurrence is admitted and the recognition of the accused who are known persons is not impossible in the circumstances of the case. The function of the Magistrate in an enquiry under Chapter XVIII of the Code of Criminal Procedure is only to ascertain if there are good materials to make out a prima facie case against the accused. The Magistrate under section 209, Cr. P. C. is required only to see if there are sufficient grounds for committing the accused to the Court of Sessions for trial. His A function is thus limited. In discharging that limited jurisdiction he can of necessity appreciate the evidence but cannot weigh the evidence and circumstances of the case for and against, for the purpose of finding out the guilt or otherwise of the accused, a task which is left to the Court of Sessions. This view receives support from the cases reported in P L D 1962 S C 480, P L D 1962 Dacca 221, P L D 1959 S C (Pak.) 347 and P L D 1967 Dacca

756. In the instant case it appears that the learned Magistrate has not only weighed the evidence in the yard stick of a scale but has also travelled beyond his jurisdiction in discarding the evidence of the P. Ws. either for this or that reason. He has thus assumed the function of the trial Court to find out guilt of the accused, instead of seeing whether prima facie case has been made out against the accused. I have looked into the evidence and in my opinion the learned Magistrate has exceeded his limit, trespassed into the province of the Sessions Court and practically usurped the function of the Court of Sessions. One man has been murdered in the occurrence. The evidence and materials on record indicate that the allegations are not frivo lous. The learned Magistrate has discharged the accused against the weight of evidence on record. The learned Sessions Judge, has, therefore, rightly set aside the impugned order of discharge and directed the accused persons to be committed to the Court of Sessions. There is another matter which requires to be mentioned here. It is now an accepted principle that the two counter cases should be simultaneously tried in the same Court The two cases arising out of the same occurrence having been pending before the same Magistrate ought to have been disposed of simultaneously one after another. The order of the learned Sessions Judge is based on good reasons and suffers from no legal defect. I do not find anything to interfere with the order complained of. The Rule, in the circumstances, is discharged. Rule discharged.