Broomfield, J.:—

This revision application is presented on behalf of two persons who have been discharged by the Magistrate, the Sessions Judge having subsequently set aside the order of discharge and having directed under section 437 of the Criminal Procedure Code that they should be committed for trial to the Sessions Court along with three other persons on charges of dacoity, wrongful confinement and other offences. The case involves a question of principle of some importance.

The allegations of the complainant in the Magistrate's Court were that he had filed a civil suit against Jafar Alli, accused No. 1, and that, while that suit was pending, Jaffar Alli and two other persons, accused Nos. 2 and 3, had come to his house, had overpowered him and thrown him on the ground and had robbed him of an account book, which was required in connection with the civil suit. Accused No. 3 had then run away to a motor car which was waiting about sixty paces off, but the complainant pursued him and when they got to the motor car in which accused Nos. 4 and 5, two police constables who are the applicants in this revision application, were sitting, there was a struggle for the account-book. Accused Nos. 4 and 5 snatched the book, tore out some pages and gave some to accused No. 1 and some to accused No. 2. After that accused No. 2 went away in the motor car and the complainant was arrested by accused Nos. 4 and 5 and forcibly taken to the police station. The complainant alleged, therefore, that the five accused had committed offences punishable under sections 395, 323, 451, 342 and 320.

The Magistrate recorded all the evidence that was offered on behalf of the prosecution and he came to the conclusion that the complainant's case as against accused Nos. 4 and 5 was not credible. He pointed out in his judgment that the complainant's story that accused Nos. 4 and 5 were sitting in the motor car was not supported except by one witness, Exhibit 13, and that witness the Magistrate disbelieved, because the description he gave of what happened during the struggle for the account book at the motor car did not tally with the evidence of the complainant or the other witnesses. There were three other witnesses, Nos. 9, 10 and 11, none of whom stated that accused Nos. 4 and 5 were sitting in the motor car. Moreover the complainant and his witnesses except No. 13 stated that accused No. 1 was one of the persons taking part in the struggle for the book, but witness No. 13 said that he never saw accused No. 1 there at all learned Magistrate also pointed out that there was no evidence at all to prove the alleged conspiracy between accused Nos. 4 and 5 and the other accused. The record of the case has been placed before us and it appears to be a fact that there is not an atom of evidence of any kind to show any connection between these two constables and the other accused, so that the alleged conspiracy could only be a matter of inference from what accused Nos. 4 and 5 did on the occasion in question. As to that, as I have shown, the evidence was thoroughly discrepant. The explanation which these accused gave was that they were off duty and in plain clothes at the time and were sitting in a tea shop. They saw these people struggling in the road and making a disturbance and therefore they arrested the complainant and accused No. 1 and took them both to the police station. After discussing the evidence at some length the Magistrate recorded findings accordingly that he was “inclined to believe in the explanation of the accused” and that there was “no evidence of the alleged conspiracy on the part of accused Nos. 4 and 5 to help accused Nos. 1, 2 and 3.” In his view what had happened was that accused Nos. 4 and 5 “happened to be there, and seeing the disturbance of the peace on the main road, they intervened, although they were not on duty, and removed the quarrelling parties to the police station.” Accordingly he discharged them, purporting to act under section 253 of the Criminal Procedure Code, and proceeded to try the rest of the accused.

There was then an application in revision to the Sessions Judge. In his order he pointed out in the first place that as the offences alleged by the complainant were some of them offences triable exclusively by the Court of Session the Magistrate's order of discharge ought to have been made under section 209 of the Code and not under section 253. Technically this may be so, although by the time the Magistrate came to make his order he had decided that no offence triable by the Court of Session had been committed, so that the proceedings ceased to be proceedings under Chapter XVIII of the Code and became the ordinary proceedings for the trial of a warrant case. But, in our opinion, in view of the authorities which have been cited to us and in view of the very similar language of sections 209 and 253, it makes no material difference whether the Magistrate's order be regarded as one made under section 253, as it purported to be, or under section 209. I shall refer to this point again after reviewing the authorities.

The learned Sessions Judge next pointed out that the complainant and one of his witnesses, that is Exhibit 13, had definitely stated that they had seen accused Nos. 4 and 5 in the motor car, and they had not been cross-examined. Apparently the learned Judge thought that, as they had not been cross-examined, the Magistrate ought to have believed their testimony, although, as I have mentioned, there were other witnesses who deposed to the same incident and did not see these accused in the motor car at all. The cross-examination of the witnesses, it should be noted, was not waived; it was merely postponed for a later opportunity.

Next the learned Sessions Judge has referred to the alleged conduct of the police constables in taking the complainant through the streets of the town of Thana, without giving him an opportunity to dress himself properly. He says: “This is not the conduct to be expected of a policeman trying to discharge his duty.” That may be so. If it was a fact that the accused were oppressive in their behaviour to the complainant, that was no doubt a breach of duty on their part. He should have been given time to arrange his dress if it was necessary, but we fail to see what that has to do with the charges of dacoity and other offences which the complainant brought against these constables.

The only reason calling for serious consideration which the learned Sessions Judge has propounded for his order setting aside the Magistrate's order of discharge appears to be contained in this passage: “Besides when police constables were involed in such a serious charge it was not at all proper for the Magistrate to take on himself the responsibility of appreciating the evidence. Properly it is a jury case and the jury should be allowed to have their say in the matter.” In these remarks the learned Judge appears to express the opinion that the Magistrate was not entitled to appreciate the evidence given in support of the complainant's case. In our opinion that is not a correct statement of the law. There is an early ruling of this High Court, Queen-Empress v. Namdev Satvaji, which was at one time cited in support of the proposition which the learned Sessions Judge appears to lay down. It was held there by Mr. Justice West that a Magistrate holding a preliminary inquiry ought to commit the accused to the Court of Session 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.” But this dictum has been explained in later cases in a manner which very materially modifies the effect which it might seem at first sight to have. In Emperor v. Rawji Hari Yelgaumkar, Mr. Justice Batty said (p. 226):—

“The question whether the District Magistrate's order directing the commitment of this case to the Sessions should be set aside depends mainly upon the construction that is to be placed on the words of section 210, Criminal Procedure Code. That section requires that a charge should be framed and commitment made only when the Magistrate is satisfied that there are sufficient grounds for committing. It is urged that this phrase is tantamount to the language used in Queen-Empress v. Namdev Satvaji and Emperor v. Varjivandas, which, according to the contention for the Crown, implies that there are sufficient grounds when the facts alleged by witnesses would suffice for the conviction if those witnesses were believed. The language in both those judgments, however, requires that the witnesses should be credible. We think, with reference to the wording of the present Code, a Magistrate can hardly be said to be satisfied that sufficient grounds for committing are supplied by the evidence of witnesses, if he himself is unable to believe those witnesses. Before he can be so satisfied it is manifest that all grounds for discrediting them must be removed. We think that a District Magistrate is not justified in calling on a Subordinate Magistrate to commit a case unless it can be shown that if that Magistrate was not satisfied as required by section 210, Criminal Procedure Code, that he ought to have been satisfied; that is to say, it ought to appear that the Magistrate had no ground for discrediting the evidence adduced for the Crown, as well as that the evidence relates to facts sufficient to form the basis for a conviction.”

Again in In re Bai Parvati it was held that where a Committing Magistrate finds that there is no evidence whatever or that the evidence tendered for the prosecution is totally unworthy of credit, it is his duty under section 209 of the Criminal Procedure Code to discharge the accused. Mr. Justice Batchelor in the course of his judgment said (page 167):—

“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. Namdev Satvaji. 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.”

We have been referred to other cases in which the Magistrate's discretion to appreciate the evidence and his duty to do so are explained and emphasised. In re Bai Parvati was followed in Emperor v. Bai Mahalaxmi. In In re Narainah Venkatesh the Court held that the powers conferred by section 437 of the Criminal Procedure Code are not to be exercised promiscuously in all cases whenever the District Magistrate, who has not seen the witnesses, forms a different estimate of their value from that which was formed by the Magistrate who did see them. Mr. Justice Batchelor, in the course of his judgment in that case, said (page 351):—

“There is no doubt that the District Magistrate has jurisdiction to make the order for further inquiry which he has made. But it is important for us now to see whether in making that order he exercised his judicial discretion properly or improperly. For it is obviously an exceedingly serious thing that a man on the same set of facts should twice be exposed to a prosecution of so grave a character as this. The limits within which the discretion to order a further inquiry should ordinarily be exercised are stated in the Full Bench decision in Queen-Empress v. Chotu, a decision which shows that those limits are rather strictly confined.”

The fact that this High Court has approved the decision of the Allahabad High Court in Queen-Empress v. Chotu is important, because what the Full Bench laid down in that case amounted in effect to this that an order of discharge should not be set aside in revision except on such grounds as would justify the setting aside of an order of acquittal in appeal. That is to say, an order of discharge which is made after hearing all the evidence for the prosecution [we are not here concerned with orders made at a previous stage under section 209(2) or 253(2)] ought not to be set aside unless it can be said that the order is perverse or manifestly unreasonable and inconsistent with an honest appreciation of the evidence before the Court.

The learned Government Pleader who appeared to support the order of the Sessions Judge maintained that a distinction ought to be drawn between orders of discharge passed under section 253 and such orders passed under section 209. No such distinction appears to be recognised in the cases cited. Emperor v. Rawji Hari Yelgaumkar, In re Bai Parvati and Emperor v. Bai Mahalaxmi deal with orders under section 209, whereas In re Narainah Venkatesh and the Allahabad Full Bench case of Queen-Empress v. Chotu deal with orders under section 253. But the Courts have laid down principles which appear to apply equally to an order of discharge passed under either section. The suggestion is that a Magistrate has a wider discretion to appreciate evidence under section 253 than he has under section 209, that the Magistrate in this case ought to have passed his order under section 209 and that under that section he was not entitled to weigh the evidence but ought to have committed the case to the superior Court as soon as it appeared that evidence was produced in support of the complaint. That proposition, however, is clearly untenable in view of the cases to which I have referred.

The learned Government Pleader cited Fattu v. Fattu, where it was held that a Magistrate ought to commit if the question of discharge or commitment is one merely of probabilities. The Court recognized, however, that the Magistrate has “a wide discretion” in the matter of weighing the evidence. In the present case it cannot be said, we think, that the Magistrate has proceeded merely upon probabilities. He considered the whole of the evidence produced by the prosecution and came to the conclusion that so far as the case against accused Nos. 4 and 5 was concerned it was not worthy of belief.

Manikka Padayachi v. King-Emperor was also cited as laying down the proposition that whenever the evidence is of such a nature that the guilt of the accused can be held to be proved or disproved only as the result of the valuing and weighing it, the Magistrate must commit the accused to the Sessions; but if the evidence be of such a nature that no reasonable person would ever on that evidence hold the accused guilty he must be discharged under section 209. That is the judgment of a single Judge and it appears to us to go farther in limiting the discretion of the Magistrate than the decisions of this Court would warrant. The view we take is that the Magistrate is both entitled and bound to value and weigh the evidence and that, if he disbelieves the evidence and makes an order of discharge, the question whether it ought to be set aside in revision depends on whether it is a reasonable order, the criterion being, not whether the revising Court agrees with it, but whether it is rational in the sense that it cannot be fairly described as perverse or manifestly contrary to the evidence. In the present case we have gone through the evidence and have considered the orders of the Magistrate and of the Sessions Judge. We think that the case against the present applicants accused Nos. 4 and 5 was very weak and that the Magistrate had good grounds for taking the view which he did take and refusing to accept the testimony of the complainant and some of his witnesses against these accused. I have already pointed out that, although the very foundation of the case against these accused was conspiracy, there is not really any evidence whatever to prove conspiracy between them and the other accused. We cannot, therefore, see anything perverse or irrational in the Magistrate's order discharging the accused.

We must set aside the order passed by the Sessions Judge in revision and direct that the Magistrate's order be restored.

Murphy, J.:—I agree.

Order set aside.

Y.V.D