Dhavle, J.This is an application in revision against an order of discharge passed by the Sub-Divisional Magistrate of Giridih u/s 209, Criminal P.C., in a case of alleged murder. On plot No. 888 in Mauza Bajania stands the landlords kutchery. The mauza was shown in the last Survey and Settlement Records as in possession of the petitioner Ganga Prasad or "Gangu" Naik (or rather his ancestors) under a bhugtan mortgage, which was succeeded by several rehan or mukarrari deeds executed in his favour from time to time by some of the Deo accused or their Deo relations, these Deos being the proprietors of the village. In 1936 one Kupa Kumari of the Deo family died, and Katku Deo, one of the accused, claimed to have succeeded to her share. There have been several criminal proceedings between Ganga Naik and Deos regarding the possession of the village. On 4th September last, two of Gangus men Bandhu Dusadh, a barahil, and Jhari Kahar, a menial, were at the kutchery in anticipation of the arrival of the patwari for the collection of rents, when they heard a hulla and found the accused Dwarka Lal coming up with the other accused (who are Deos) and some other persons. Upon the orders of Dwarka, Bhagbat Deo began to give blows with his phalsa, and Bandhu Dusadh warded them off with his lathi, which thus got cut into two pieces. He was next seized and surrounded, and Katku Deo gave him a barchha blow. Bandhu then came up to the verandah, where he fell down and soon expired. This was the prosecution story.

2. The first information drawn up in the case was one of murder against the four Deo accused and was recorded on the statement of a chaukidar who had not seen any of the occurrence himself. On the scene the police found the corpse of Bandhu. The usual post mortem showed that the death was due to shock and haemorrhage from a five inch deep punctured incised wound on the left side of the chest between the second and the third ribs, penetrating through the lung to its root--an injury which, according to the doctor, was probably caused by a sharp edged and pointed weapon such as a spear. After investigation the Sub-Inspector sent the accused up under Sections 302/326/109, Penal Code. The important prosecution evidence related to the question of possession of Gangu Naik and the occurrence itself as seen by three eyewitnesses--Jhari Kahar, the menial who had accompanied the deceased Bandhu Dusadh to the kutchery, and Jhaman Deo and Rurki Singh who spoke of arriving on the scene on hearing the hulla before they ran away.

3. There was a counter-version given by the accused Gangu Deo in a first information lodged by him three hours or so after the information of murder lodged by the chaukidar and according to this counter-version, the Deos were in possession of the kutchchery, and 20 persons on behalf of Gangu Naik came, variously armed, and assaulted them. "Later on they (the Deos) came to know that Bandhua was killed." Three defence witnesses were called before the Magistrate, and only spoke of the possession of the accused over the village. The learned Magistrate found that the story of the three eye-witnesses was contradicted by what thejj; had stated earlier to the investigating Sub-Inspector. According to him there appeared "no good reasons to dispute the correctness of the record of their statements in the case diary" and he observed that "in any case the benefit of such earlier statements has to be given to the accused." These earlier statements included statements about how Gangu Naiks men had been turned out previously, and Gangu Naiks men were taken by the Magistrate to have failed on the question of possession in more than one proceeding u/s 107, Criminal P.C. Three of the Deo accused also had incised injuries on their persons, and the learned Magistrate took it that if the mob of Gangu Naik came armed with deadly weapons to dispossess the accused, the latter " had every justification in exercise of the right of their private defence to use as much force as it was necessary to defend their person and property. He considered the defence case to be much more reliable and probable than the prosecution case, and he came to the conclusion that the prosecution evidence was "neither sufficient nor satisfactory to establish even a prima facie case against the accused," that there would be no chance whatsoever of any conviction, and that accordingly there were no sufficient grounds for committing the accused to the Sessions.

4. It has been urged on behalf of the petitioner that the Magistrate erred in taking it upon himself to dispose of a case that should have been dealt with in the Court of Session and that matters like the right of private defence are essentially matters for the trying and not for the committing Court. The Magistrates appreciation of the evidence has also been challenged as incorrect. The Advocate General has further contended that not having definitely accepted the evidence of the three defence witnesses regarding the possession of the accused but having preferred rather to rely on what the prosecution witnesses were supposed to have told the police, the Magistrate should not have cancelled any charge against the accused u/s 213, as it is suggested he has done in substance.

5. This last point has been easily answered by the learned advocate for the accused. Sections 208, 209 and 210 make it perfectly clear that defence witnesses may be examined in commitment proceedings even before the time comes to frame a charge. Section 211 gives an opportunity to the accused after charge framed, to name the witnesses whom he wishes to be summoned to give evidence on his trial, and Section 212 enables the Magistrate in his discretion to summon and examine any of them, and it is when this is done that Sub-section (2) of Section 213 comes into play and authorizes the Magistrate to cancel the charge if he is satisfied that there are not sufficient grounds for committing the accused. In the present case the Magistrate framed no charge at all, and if he examined witnesses, this was done u/s 208. The petitioners contention must therefore be overruled.

6. As to the evidence before him, the learned Magistrate does seem to have overlooked such considerations as that possession of some land or other in the village need not necessarily point to possession of the landlords kutchery, and that if Jhaman Deo told the Sub-Inspector that two years ago Katku Deo and others have driven away Gangu Naiks men from the kutchery and if Rurki Singh made a similar statement to the f. Sub-Inspector, this need not by any means be decisive on the question of actual possession of either of the two parties at the time of the occurrence. His observations that there appeared no good reason to dispute the correctness of the record of the statements in the case diary is somewhat surprising in view of the fact that an application on behalf of Gangu Naik for permission to cross-examine the Sub-Inspector was dismissed by him merely on the ground that it should have been made earlier. Had the Magistrate paused to consider why with these earlier statements before him the Sub-Inspector should have returned a charge sheet of murder, he might have been less ready to discard the prosecution case and consider the defence case as much more reliable and probable, notwithstanding the fact that there was no evidence before him in support of the defence case except the evidence of three witnesses merely regarding possession, evidence which apparently in his judgment required to be fortified by the alleged ad. missions of Jhaman Deo and Rurki Singh to the Sub-Inspector.

7. It is by no means clear that the Magistrate addressed himself correctly to the, police diary, when he spoke of there being no good reason to dispute the correctness of the record of the witnesses statement in it. I understand that Gangu Naick was represented before the Magistrate by a pleader who, however, could do nothing without the permission of the Magistrate; the conduct of the prosecution was in the hands of the Court Sub-Inspector, an officer who could only proceed on the police diary and could not be expected to assist in assailing it. There have been cases before now in which Sessions Courts have had to deal with more than one version of an occurrence against the accused, one version being that which the police have adopted and another a version which on the materials before him the Public Prosecutor, with a position very different from that of the Court Sub-Inspector, feels it his duty to present before the Court of Session. This aspect of the matter seems to have escaped the Magistrate altogether. As it is the duty of a Magistrate making an inquiry under Chap. 18 to decide on the materials before him whether or not there are sufficient grounds for committing the accused for trial, there can be no question that he is not only entitled but also bound to consider the, evidence and weigh it. It is equally 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. The principle laid down inIn re Bai Parvati (11) 35 Bom. 163 has been followed in this Court, and was recently endorsed by a Pull Bench of the Bombay High Court in Ramchandra Babaji Gore Vs. Emperor, , where Beaumont, C.J. said:

Now it is quite clear, I think, that u/s 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.... They (Magistrates) 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.

8. In the present case, the Magistrate seems to have gone further than his limited duty required by taking it upon himself to say in 1 effect that the record of the witnesses statement in the Sub-Inspectors diary is decisive and that no Judge or jury would discredit that record, however much the Sub-Inspector, if allowed by the Court empowered to try the case to be cross-examined by a lawyer on behalf of Gangu Naik may be shaken. He has also declined to attach any weight to what Jhari Kahar may have seen with his own eyes, because according to the Sub-Inspector Jhari "altogether denied to know anything about the occurrence." Jharis explanation was that he was threatened into silence by the Sub-Inspector of Police, and the learned Magistrates comment is that there is "nothing on the record to warrant any such inference." But Jharis statement is there, and there is also the circumstance that Jhari was one of the men accused in the counter case. The Sub-Inspector may or may not have threatened Jhari into silence, but apparently Jhari was there, whether on the prosecution or on the defence version of the occurrence; and if he did at first deny all knowledge, this need not, on the face of it, be incapable of an explanation which might well be accepted by the trying Court. In Emperor Vs. Allah Mahr and Another, , Walsh Ag. C.J. and Banerji, J. dealing with the duty of the committing Magistrate, placed.

the classes of cases into three categories. There is the case where the evidence is prima facie so clear that nobody can entertain any doubt that the matter ought to be tried. There is on the other hand, the class of oases where the evidence is so palpably tainted, absurd, incredible and, as it has been described on occasion, groundless, that nobody could doubt that it would be a hardship and unjust to an accused person to allow the matter to go any further. There is the third category, which, of course, provides debatable ground, where the evidence is conflicting, and lays itself open to suspicion but where, on the other hand, it may be true, and may commend itself to certain tribunals, the Magistrate even though he may have reason to doubt whether if he were trying the case he would convict, has no right to substitute his judgment for the final judgment of the Court indicated by law for the trial, and to arrive at a final decision dismissing the case in the way in which he would do if he were the trial Court. If the evidence is balanced, however unevenly in his opinion, then it is a matter which has to be tried, and it is his duty to commit it for trial.

9. I am not Sure that the learned Magistrate on this occasion really dealt with the case as falling in the second category. There was a conflict in the evidence, though mostly by reason of what the eye-witnesses are supposed to have told the Sub-Inspector, and the Magistrate had no right to do what he has done, which in my opinion amounts to "substituting his judgment for the final judgment of the Court indicated by law for the trial," especially after denying to Gangu Naik any opportunity of cross-examining the Sub-Inspector. The order of discharge must, therefore, be set aside, and the case sent back to the Sub-Divisional Magistrate (I understand there has been a recent change of personnel in that office) for a reconsideration of the evidence after giving Gangu Naik an opportunity of cross-examining the Sub-Inspector and proceeding in accordance with the law.