Sarjoo Prasad, J.

(1) The petnr in this case has moved against an order of the Dist Mag of Champa-ran directing the commitment of the petnr accused for trial before the Ct of sessions for a charge under Section 376, I. P. C. The Dist Mag: has passed the order of commitment after setting aside an order of discharge passed by Mr. A. A. Khan, Mag of the First Class, Bettiah, who held an enquiry under Chapter XVIII of Cr. P. C.

(2) The allegation against the petnr is that on 20-9-1949, at about 9 a.m. he committed rape upon the complainant Mt. Kaushalya. This occurrence took place in village Telpore about eight miles off from police station Laurya and twenty-two miles away from the Sub-division of Bettiah. The complaint was lodged by the girl on 21-9-1949, in Ct, which the Sub-divisional Mag referred for investigation to the local police without taking any steps to have the girl examined by a medical officer. The Sub-Inspector of Police received the order on 27-9-1949 when he recorded a first information and proceeded to investigate the case. The medical examination of the girl actually took place on 1-10-1949 almost ten days after the occurrence. The evidence of the doctor is that the girl is below the age of 16 years. A number of prosecution witnesses have been examined in the case, two of whom purport to be eye witnesses to the occurrence itself; and the evidence of the girl as also that of the eye-witnesses is sought to be corroborated by the evidence of some other witnesses to whom the girl stated about the occurrence. The learned Dist Mag has observed that prima facie the evidence of the eye witnesses is corroborated by some of the circumstances in the case, such as the absconding of the accused and the recovery of broken pieces of bangles from sugar cane field. He, therefore, thinks that prima facie it was a case which should have been committed for trial and the learned Mag acted erroneously in discarding the prosecution evidence on balancing of probabilities. The learned Dist Mag has pointed out that although a committing Ct has every right to weigh the evidence before him in order to find out whether a prima facie case has or has not been made out for the trial of the accused, lie has no right to substitute his own judgment for the final judgment of the Ct which is competent to hold the trial. He has also pointed out certain errors in the judgment of the learned Mag in his appreciation of the evidence on the record.

(3) It is unnecessary for me to discuss the merits of the evidence and to make any observa tion which may be calculated to prejudice the trial of the accused. It seems to me that the view taken by the learned Dist Mag of the functions of a committing Ct is perfectly jus tified and is supported by numerous authorities of this Ct as also of other Cts. The main func tion of a committing Ct is to see whether the evidence is such that the accused should be sent up for trial or not. If he thinks that the evidence is of such a nature, then merely be cause as a trying Ct, he himself might not have been prepared to accept that evidence, he cannot discharge the accused. It may be that the trying Ct may take a different view of the evidence from the one which has been taken by the Mag himself. His function is to see whether the case is a fit one for trial or commitment, and not whether the ease is a fit one for conviction. Therefore, if there are two views possible of the evidence, although the Mag may be inclined to a view in favour of the accused, he should not, merely on that account refuse to commit the accused so long as there is a possibility of another view being taken by the Ct which finally comes to try him. It is only where, on the evidence on record, no other view is possible except the one in favour of the accused, that a Mag should refuse to commit such a case because there is really no evidence for trial. These propositions appear to have been well settled by various decisions of this Ct. In Moinuddin v. Sheogobind Sahu, A IB

28. 1941 Pat 505 [LQ/PatHC/1941/84] : 42 Cr L. J. 576., Meredith J. observed as follows:

"If the Mag, after weighing the evidence, is satisfied that it is evidence upon which no reasonable Ct could convict, it is his duty to discharge, but if it is a case of balancing probabilities, estimating pros and cons; if it is a case where a different Ct might possibly in his opinion come to a conclusion different from his own, then it is his duty to commit where the evidence is sufficient for conviction even though he may himself not think the evidence sufficient for a conviction."

(4) Again, in Ganga Prasad v. Bhagwat Deo, AIR

29. 1942Pat38: 42Cr L. J. 767.. Dhavle J. observed that it was the duty of a Mag making an enquiry under Chap 18 to decide on the materials before him whether or not there were sufficient grounds for committing the accused for trial, there could be no question that he was not only entitled but also bound to consider the evidence and weigh it. It is quite clear, however, that he must do so in order to discharge the limited duty laid upon him, and not by way of trying the case.

"Therefore, if the evidence was balanced however, unevenly in his opinion, then it was a matter which had to be tried, and it was the duty of the Mag to commit it for trial and not to discharge the accused."

This is what the learned Mag appears to have done, namely, that he has balanced the evidence in the light of probabilities. It may be that the sessions Ct may, in spite of these probabi lities accept the direct evidence of the prose cution witnesses. The Mag in fact, as the learned Dist Mag points out, and there may be much substance in the reasons which he has advanced, relied upon probabilities which do not appear to carry much weight with the latter: My observations on this point should not be, in any manner, construed to prejudice the case of the accused, but I am only referring to it in order to illustrate the point that it was pos sible and, in my opinion, very reasonably possible to take a different view of the evidence, as the learned Dist Mag appears to have done. Reliance was placed upon a decision of this Ct, in Mander v. Karu Mander, 6 PLT 146: AIR 1

2. 1925 Pat 279 [LQ/PatHC/1924/24] : 25 Cr LJ 1089., and another decision of this Ct in Tincouri v. Emperor, 1 PLT 153: AIR

7. 1920 Pat 46: 21 Cr LJ 328.. These decisions stand on their own facts and the pro positions laid down there need not be disputed. As I have said, it is certainly open to a Mag holding a preliminary enquiry in a case triable by a Ct of sessions to examine the credibility of the testimony of witnesses, but he can do so, only for the limited purpose of seeing whether there is a prima facie case for commitment and not for the purpose of coming to a decision whether the accused is actually guilty. It is true that this Ct has got full jurisdiction under Section 437, Cr. P. C., to revise the commitment order, under Section 436, made by a Dist Mag both on points of law as well as of facts. I have cur sorily glanced through the evidence and, for the present, I am not inclined to differ from the view taken by the learned Dist Mag. The deci sion in Tincouris case, 1 PLT 153: AIR

7. 1920 Pat 46: 21 CrLJ 328., was one in which Jwala Prasad J. pointed out that the evidence was such that no Ct would, upon the evidence, feel any hesitation in acquitting the accused. For these reasons, I am not inclined to interfere with the order passed by the learned Dist Mag. The rule is accordingly discharged.