P L D 1959 Supreme Court (Pak (PLP)

SHAHABUDDIN, J.‑This is an appeal by special ‑leave from the judgment of the High Court of Dacca by which the order of the Additional Sessions Judge of Dacca directing the committal of the respondent Gopi Ballav Shaha for trial for an offence under S. 471, P. P. C. was set aside. Gopi Ballav Shaha and his two brothers instituted a small cause suit for the recovery of Rs. 280 from the appellant Hari Ballav Shaha Roy on the basis of a kishtbandi bond, which contained four endorsements of payments purporting to have been made by the appellant to keep it alive. The defence in the suit was that the last two of these endorsements were forgeries, and the Munsif accepting this version dismissed the suit. The respondent took up the matter in revision to the High Court, but the revision petition also was dismissed, whereupon the appellant applied to the Munsif for action under S. 476, Criminal Procedure Code, but that application was rejected. The matter was then taken to the High Court once again and that Court directed the Munsif to file a complaint against the respondent. This was done; and the appellant in support of his case examined besides himself, his advocate, his clerk and a handwriting expert (P. W. 4), while the defence that all the endorsements were genuine and were made by the appellant was supported by two handwriting experts examined as D. Ws. 1 and

2. The Magistrate Who held the preliminary enquiry did not believe P. W. 4, the handwriting expert examined for the prosecution. He observed that this witness "appears to have overreached himself". He examined the signatures on the bond in question with reference to the reasons given by this witness and being of opinion that they were of the appellant, agreed with the experts, for the defence and holding that there was not sufficient ground for committing the respondent for trial discharged him. As against this order the appellant filed a petition in the Sessions Court for action to be taken under S. 437, but the Additional Sessions Judge of Dacca, who heard this petition declined to interfere on the ground that the appellant .had no locus standi, as the complaint had been filed by the Munsif, though on a consideration of the powers of the Committing Magistrate under the Criminal Procedure Code the Additional Sessions Judge came to the conclusion that the Magistrate who discharged the respondent had usurped the functions of the trial Court. The appellant who seems to have been determined to pursue the matter moved the High Court in revision against this order and the learned Judge who heard the revision petition holding that the powers under Ss. 435‑439, could be exercised in this case even at the instance of a private party sent the case back to the Sessions Court for being dealt with under S.

437. The Additional Sessions Judge thereupon set aside the order of discharge and directed that the respondent be committed to the sessions. He took the view that the Magistrate should not have sifted the evidence adduced before him. Against this order of the Additional Sessions Judge the respondent went up in revision and the learned Judge who head the revision petition set aside the order observing that he did not agree with the view of the Additional Sessions Judge that the Magistrate was not competent to sift the evidence and believe or disbelieve the witnesses. As regards the merits it was pointed out by the' learned Judge that the Additional Sessions Judge was very much influenced by the observations made by the High Court at a stage prior to the filing of the complaint. It was also pointed out that the Additional Sessions Judge did not find that the view taken by the Magistrate of the evidence was perverse. Mr. Fazlul Huq for the appellant contended before us that as there was evidence for the prosecution which, if believed, could establish the case against the respondent the Magistrate should have left it to the Sessions Court to weigh it as against the evidence adduced for the defence and that what the Magistrate had done was in effect an usurpation of the powers of the Sessions Court. Mr. Hamidul Haq for the respondent argued on the other hand that to discharge his functions under Ss. 209 and 213 of the Criminal Procedure Code a Magistrate holding a preliminary enquiry has to appreciate evidence and not apt as a post office and that on merits there were not sufficient grounds for committing the respondent for trial. The law relating to preliminary enquiries into cases triable by Courts of Sessions is found in Ch. 18 of the Criminal Procedure Code. Under S. 208 the Magistrate shall hear the complainant, if any, and take the evidence produced in support of the prose cution or in behalf of the accused or the evidence, which the Magistrate himself may call for. After such evidence has been taken and the Magistrate if he finds it necessary has examined the accused for enabling him to explain any circumstances appearing against him, the accused shall be discharged under S. 209 if the Magistrate finds that there are not sufficient grounds for commit ting him to the sessions to take his trial. The Magistrate may, however, discharge the accused even at an earlier stage for reasons to be recorded if he considers the charge groundless. But if on the evidence referred to in S. 208 and on the examination of the accused pointed out in S. 209 the Magistrate is satisfied that there are sufficient grounds for putting the accused on trial before the Sessions Court, then according to S. 210 a charge shall be framed against him and under S. 211 be shall be required to give in orally or in writing a list of witnesses whom he wishes to examine at his trial. Section 212 gives the Magistrate power to summon and examine any witness named in the list given under S.

211. When the accused has declined to give the list referred to under S. 211 or when the witnesses cited by him and whom the Magistrate desired to examine have been examined the accused may be committed to the sessions, but if the Magistrate after hearing the witnesses for the defence is satisfied that there are not sufficient grounds for committing the accused he may cancel the charge and discharge him. The preliminary enquiry is obviously intended to prevent false and frivolous cases occupying the time of the Sessions Court and innocent persons being put to the trouble and expense of under going a sessions trial. This is evident from the fact that S. 209 makes it obligatory on the Magistrate holding the enquiry to dis charge the accused in case there are not sufficient grounds for com mitting him for trial. To discharge this function the Magistrate has necessarily to appreciate the evidence. But he must bear in mind that the purpose of the enquiry is only to determine if there are sufficient grounds for making the accused stand a trial and not to decide about his guilt. He should take care to see that he does not trespass into the province of the Sessions Court which alone can try the accused. It is not easy to draw the line between the duty of the Magistrate and that of the Sessions Court in all cases. There is no difficulty in those cases where the evidence 'is such that there can be no two opinions as to whether the case is 'a fit one‑ for trial or not. But quite a number of cases are on the border line, and as the amount of evidence which would enable the Magistrate to determine whether there are sufficient grounds for committing the accused for trial or not is entirely dependent on the facts of each case, it is neither useful nor desirable to attempt at a precise definition of the limits of the Magistrate's discretion in the matter. Courts have however indicated in several decisions the lines on which the Magistrate holding the preliminary enquiry should exercise his discretion. For instance in Ramchandra Babaji Gore v. Emperor (I L R 59 Born. 125 at pp. 136 & 137), a Full Bench decision, cited for both the appellant and respondent, Sir John Beaumont C. J., while dealing with the present question made the following observation: ‑ "Now, it is quite clear, I think, that under section 209 the Magistrate has got to consider the evidence. He has got to satisfy himself that there are sufficient grounds for committing the accused person for trial, and to do that he must consider the evidence, both its nature and credibility; but he has not got to satisfy himself that there is a proper case for convicting the accused; he is not to try the accused, that being a duty imposed by the Code on the Sessions Court. It is no doubt difficult and undesirable to attempt to define precisely the limits of the powers of Magistrates conducting preliminary inquiries, Experienced Magistrates do not in practice find any great difficulty in dealing with inquiries under section 206 and the following sections. They have to be satisfied before committing ' the accused that there is a fit case to be tried. If the Magistrate comes to the conclusion that there is evidence to be weighed, he ought to commit the accused for trial and he ought not to discharge the accused merely because he thinks that if he were to try the case himself he would not be prepared to convict the accused on the evidence before him. But if he comes to the conclusion that the evidence for the prosecution is such that no tribunal, whether a Judge or Jury, could be expected to convict the accused, then he ought to discharge him". With reference to this observation Division Bench of the same High Court stated as follows in Akberally v. Alimahomed (A I R 1939 Bom. 372), another decision cited by the learned Advocates on both sides: ‑ "That clearly means that the Magistrates's duty is to consider whether a conviction is possible in the case, and in order to come to that conclusion he is entitled to appreciate the evidence. But he must appreciate the evidence from that point of view only, and it is not within his province to consider the evidence merely from the point of view of the probability of a conviction resulting. It may be that a conviction is improbable. But if it is possible for a Court to take such a view of the evidence as to be able to found a conviction upon it, then it is the duty of the Magistrate to commit the accused for trial. I do not see that there is any other way of interpreting this judgment, and with respect I do not think that there is anything incorrect in the statement of law which it lays down". The Allahabad High Court took the same view in Akbar Ali v. Raj Bahadur and others (A I R 1925 All. 610), cited for the appellant where the Magistrate had discharged the accused under S. 213, Cr. P. C. Sulaiman, J. one of the Judges who decided that case pointed out that the expression "not sufficient grounds, for committing ‑the accused" is quite different from such expression as the case not proved or the accused are innocent" and that if after hearing the defence evidence the Magistrate finds that it rebuts the evidence for the prosecution or renders it so incredible that no conviction would follow he must discharge the accused. He then went on to observe: ‑ "This, however, does not mean that the Magistrate is to arrogate 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 dis charging 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". The above statements of law fully accord with the provisions discussed above, and we with respect agree with them. Sub stantially to the same effect are the views expressed in Emperor v. Allah Mahr and another (I L R 49 All. 443 (1‑A) A I R 1942 All. 334), Bilas Singh and another v. Emperor (1‑A) and Tarapada Biswas and another v. Kalipada Ghosh (A I R 1924 Cal. 639); cited for the appellant. But‑in National Bank of India v. Kothandarama Chetti (21 I C 129), a decision of 1913 also cited for the appellant, there are certain observations in the judgments in that case (on a difference of opinion the case was finally decided by a third Judge under S. 429 of the Cr. P. C), which need consider ation. In that case one of the Presidency Magistrates of Madras had discharged two persons who were put up before him on a charge that they and another who was absconding conspired together and induced the Bank to discount a number of forged promissory notes; and the evidence was circumstantial. The order of discharge was taken up in revision to the High Court and while Benson, J. one of the Judges who heard the revision petition held that the evidence before the Magistrate was sufficient for committing the accused for trial the other Judge Sundara Iyer, J. held contra. The matter was placed before a third Judge Bakewell, J. and .he agreed with Benson, J. with the result that the accused were ordered to be committed for trial. Benson J. relied on the decision of the Bombay High Court in Emperor v. Varjivandas alias Kalidas Bhaidas (I L R 27 Bom. 84), where the order of discharge was set aside as it was found that a prima facie case had been made out. The observation quoted by Benson, J. from this decision defines only the limits of the discretion of the Magistrate in the matter of discharging the accused as the learned Judges of the Bombay High Court had come to the conclusion that there were in that case sufficient reasons for committal. It does not refer to cases where Magistrate can discharge the accused, but the obser vation so far as it goes accords with the view expressed above. But Bakewell, J., however, after stating that the Magistrate should commit the accused if he is satisfied that there are credible witnesses to facts which if believed by a Jury would justify a conviction added that if the Magistrate "proceeds to weigh the evidence to accept some statements and reject others, to deal with probabilities or to draw inferences as to knowledge or intention he has in reality dealt with the question of guilt or innocence of the accused and usurped the functions of the ‑trial Court". This observation so far as it refers to inferences as to knowledge or intention had it stood by itself, might not have been considered as a correct proposition, for it amounts to this that the Magistrate cannot draw any inference which would mean that he must commit the accused in all cases where the evidence is circum stantial. But as is seen from the following later observation in the same paragraph the learned Judge was obviously referring to cases where more than one inference is possible: ‑ "I most respectfully dissent from the view apparently held by Sundara Iyer, J. that where are facts from which several inferences as to knowledge or intention may reasonably be drawn the Magistrate is entitled to weigh the evidence and draw such inference as he thinks just". There are observations in the judgment of Sundara Iyer, J., to the effect that where more than one inference is possible the Magistrate may draw one rather than the other if neither can be said to be of a higher degree of probability. This virtually gives the Magistrate power to weigh probabilities which is the function of the trial Court and consequently it conflicts with the view with which we have expressed our agreement above. The majority view is substantially the same as that already explained. We have not been shown any case adopting the view of Sundara Iyer, J. On the other hand, I L R 48 Mad. 874 a decision of 1725 also cited for the appellant and A I R 1937 Mad. 654 and A I R 1947 Mad. 191 cited for the respondent are to the same effect as the decisions of the Bombay, Allahabad and Calcutta High Courts discussed above. Similarly A I R 1943 Oudh 233 and A I R 1926 Cal. 528 are cited for the respondent. From the above discussion it follows that a Magistrate holding the preliminary enquiry has power to sift and weigh evidence only for the purpose of determining whether or not it is a fit case for committal and not for deciding about the guilt of the accused, that no hard and fast rules can be laid down regarding the distinction to be made between the duty of a Committing Magistrate and that of the Sessions Court, but the test indicated above is a safe guide viz., that if there is on the evidence even a possibility of conviction the accused should be committed for trial though the Magistrate thinks that a conviction is not probable or the matter is not free from doubt, but that he should discharge the accused if on the evidence he comes to the conclusion that no Court or Jury could reasonably be expected to convict the accused. Applying this test to the case under consideration it cannot be said that the Magistrate has over‑stepped the limits of his powers. As indicated already in the earlier part of this judgment the Magistrate was not impressed by the opinion of P. W. 4 on its merits. The observation made by him in this connection is as follows: "In his exuberance to support the cause of the party on whose behalf he is deposing, the expert P. W. 4 appears to have over‑reached himself. He says that before examination he did not know that signatures X and XI are the disputed signatures. It is only during examination that he came to know that X and XI were taken from the model of A‑1 and A‑

2. It is really extraordinary that he could know that X and XI are imitations of A‑1 and A‑2 rather than the latter are imitations of the former. As against this we have in the evidence of the 2 D. Ws. (H. W. Experts) a frank admission that they learnt from before which of the signatures are disputed and which are admitted. This add to the weight of their opinion". P. W. 4 appears to blow hot and cold in the same breath. He says that signatures in A, A‑1 and A‑2 are identical but at the same time he states that he did not consider only one signature sufficiently representative of all the 3 signatures. In his evidence before this Court he gave 5 reasons for holding X and XI to be forgeries. The reasons Nos. 2 and 3 were not given in the Munsif's Court although he considers the reasons given in 5 paragraphs to be important points to support his finding. He pleads mistake or oversight as the grounds for omission of reasons 2 and 3 in the Munsif's Court. This belated development detracts much from the value of his opinion". The Magistrate then went on to consider the over‑writing of a certain letter in Exh. A‑1 and test the opinion given by the expert. He then observed: "I agree with D. W. 2 when he says‑ that no‑ imitator will ever produce any writing which .is different from the genuine writings at least in its broad features, namely the general appearance, whereas genuine writer very often makes the variation in the broad features". These observations indicate that the Magistrate has sifted the evidence; but sufficient has been said above to show that a Magistrate has powers to do so. As indicated already the Magistrate has to consider the evidence of defence witnesses examined in the enquiry as against the evidence for the prosecution if he is to determine whether there are or not sufficient reasons for committing the accused It is considered extremely unsafe to base a conviction solely on the evidence; of a handwriting expert and when that evidence is not only unsatisfactory but has been' contradicted by the experts examined for the defence it is reasonable to conclude that a conviction is not possible on that evidence. It is true that the Magistrate does not say so in so many words, but his observations taken with the facts of the case do lead us to that conclusion. It is significant in this connection that the Additional Sessions Judge who ordered that the case, should be committed to the Sessions was influenced to a great extent by the observations that had been made by the High Court in the civil revision petition against the dismissal of the suit. He has no doubt criticised the Magistrate's conclusion on merits; but from the following observation in his judgment it is clear that but for the opinion of the High Court quoted in those observations he might not have relied on the evidence of that expert: ‑ "I find that the entire original records of the S. C. C. suit, out of which this prosecution finally cropped up were laid before the learned Magistrate. Now, had he taken the trouble of going through such records he would have found that the learned Munsif had found in his judgment of the S. C. C. suit that the questioned endorsements per Exhs. X and X (1) were not in the hand of the present petitioner Hari Ballav Saha and that they were forged. His such finding was upheld by the Hon'ble Court in Civil Rule No. 791 of 1951 when Badiuzzaman, J., observed as follows:‑ The handwriting expert did neither vacillate nor ramble but gave his opinion with confidence. What he stated was that he was definite that the signatures Exhs. A(I) and A(2) were not identical with the signatures of the Exhs. X(1) and X(2). The expert was cross‑examined at length but no flaw, as I find from the judgment, could be found in his reasonings. The Munsif, therefore, rightly dismissed the suit. * * * *Again, when the present petitioner Hari Ballav Saha took up the sanction matter before the Hon'ble Court in Civil Revision No. 3 of 1953, Ellis, C. J., and Zaman J, observed as follows: ‑ It is perfectly clear from the Munsif's as well as from the judgment of this Court that an offence under section 471, of the Pakistan Penal Code at least was committed and after we have heard Mr. Jnanabrata Roy on behalf of the petitioner we asked Mr. D. C. Roy to show us why a complaint should not be launched in respect of an alleged offence under S. 471, P. P. C. against the O. P. No. 1 Gopi Ballav Shaba It seems to us that so far as Gopi Ballav Saha is concerned, there was sufficient reason to believe that an offence under section 471, P. P. C. appeared to have been committed by him." The Additional Sessions Judge was apparently under the impression that as the evidence of the Expert examined for the prosecution was accepted by the High Court in the civil pro ceedings the Magistrate should not have discarded it, forgetting the fact, as pointed out by the learned Judge from whose order this appeal has been preferred, that in the enquiry the Magistrate had before him also the evidence of the experts examined by the accused. The Additional Sessions Judge was not right in allowing himself to be influenced by those observations. He had to come to a conclusion in the case on the evidence adduced before the Magistrate in the committal enquiry. This has been made clear in Tarapada Biswas and another v. Kalipada Ghosh one of the decisions which the Additional Sessions Judge himself has relied on in respect of the powers of a Magistrate holding a preliminary enquiry into cases triable by Sessions Court. Therefore his finding regarding the propriety of the discharge of the accused can hardly be regarded as correct. The learned Judge of the High Court who set aside the order of the Additional Sessions Judge directing the committal hay observed to the effect that when the Magistrate has discharged the accused in the preliminary enquiry an order of commitment could not be made under S. 437 unless the Sessions Court reaches the conclusion that the finding of the Magistrate was not only wrong but also perverse. On this point there seems to have been some difference of opinion as is seen from the judgment in the 59 Bombay case discussed above where dissenting from 57 Bom. 430, which had taken the same view as that expressed by the learned Judge of the Dacca High Court, it was observed that a discharge in cases of‑the kind under consideration can be set aside under section 437, even on the ground that it is improper and that a finding that it is also perverse is not required. It is, however, not necessary for the purposes of this case to express any opinion on this point, for, as indicated already, even if it is assumed that the discharge could be interfered with on a mere finding that it is improper, there is no justification for such a finding. For reasons already stated it cannot be said that the discharge of the respon dent was improper and as already pointed out the Additional Sessions Judge has not recorded his finding on the evidence uninfluenced by observations not strictly relevant to the case. The appeal is, therefore, dismissed. A. H, Appeal dismissed,