Meredith, J.This rule had been issued at the instance of a private prosecutor, against a Magistrates order, discharging two persons, Sheogobind Sahu and Mahadeo Kahar, u/s 209, Criminal P.C.

2. Some occurrence took place in the evening of 23rd May 1940, at village Nohsa near Patna, and in the course of it one Hamid met his death. A first information, charging 19 persons with riot and murder, was lodged at the police station without any delay, and the Sub-Inspector of Police proceeded to the spot also without delay, and after completing his investigation he submitted charge sheet against all the 19 persons named in the first information, including the opposite party, Sheo Gobind Sahu and Mahadeo Kahar. The case was inquired into by the learned Sub-divisional Officer of Patna Sadar Subdivision. A number of persons testified as eye-witnesses, and were not cross-examined before the learned Magistrate. A large number of these eye-witnesses stated that it was Sheogobind who had given the order for assault, and it was Mahadeo who had struck the first blow upon Hamid. P. Ws. 2, 3, 4, 5, 6, 7, 9 and 10 identified Mahadeo Kahar as having been in the mob, and of them P. Ws. s, 4, 5, ,6 and 7 stated that they had seen Mahadeo giving a spear blow to Hamid. Moreover, the village dafadar (p.W. 8) testified that before his death Hamid had made a dying declaration to him that the first bhala blow was struck by Mahadeo.

3. As for Sheogobind Shahu, his presence in the mob was deposed to by all the eyewitnesses in the case, eight in number, and six of them spoke of his carrying a bhala. Though the prosecution witnesses were not cross-examined with regard to this evidence, Sheogobind and Mahadeo examined defence witnesses to establish an alibi. They examined an advocate and a mukhtear to prove that at the time of the occurrence they had been at the advocates house, instructing him with regard to the argument to be made in a criminal case in which they were accused, and which had been fixed for the following day.

4. The learned Magistrate did not state definitely that he disbelieved the evidence of the prosecution witnesses, but he held that in the case of these two accused persons the alibi had been established, He therefore adopted the course of discharging these two and committing the remaining 17 accused persons to the Court of Session for trial upon charges under Sections 147, 148, 820, 302 and 302 read with Section 149 of the Penal Code.

5. The learned Sessions Judge has already declined to interfere in revision with the order of discharge. Nevertheless in my view, it was an order which, having regard to all the circumstances of the case, should not have been made. I have said that the learned Magistrate nowhere expressly found that the prosecution witnesses could not be believed, and, were giving false evidence. That is a point made in support of the rule. It is a point which indicates the inadvisability of the course which the Magistrate adopted. It is obvious that it placed him in a difficulty.

6. He could not very well say that the prosecution witnesses were liars, and then proceed to commit 17 persons for trial upon the evidence of those very witnesses. It appears to me that if he definitely held that the evidence produced for the defence was of such a character as to show that the prosecution witnesses were not witnesses of truth, that would be a ground for discharging all the accused, but not for discharging two of them, and committing the remainder. The evidence for the prosecution was the evidence of the same witnesses against all the persons accused before him.

7. It was not by reason of anything these witnesses had said, but by reason of what the defence witnesses had said that he differentiated between the testimony of the prosecution witnesses as against some of the accused and as against others. That course cannot, in my view, possibly be justified. In such circumstances the real alternatives were either to commit or to discharge all. Even without an express finding on his part that the prosecution witnesses were speaking falsely the course he adopted must, it seems to me, be liable to prejudice the trial of the persons he actually committed. It would have been better in such circumstances to leave the evidence as a whole with all its pros and cons to be weighed by the Court of Session.

8. It is pointed out for the opposite party that the law clearly does not intend the committing Magistrate to act as an automaton. It clearly empowers him to weigh the evidence, and to exercise his judicial discretion, and it plainly contemplates that he should do so. A number of rulings have been cited in support of this proposition. It was hardly necessary to do so, because its correctness cannot be questioned. Nevertheless, it is one thing to weigh the evidence with a view to determining whether there are or are not sufficient grounds for commitment within the meaning of Section 209, and another to balance the evidence, as it is the duty of the Sessions Court to do, in order to decide upon the guilt of the accused after considering the case as a whole. It is not for the Magistrate to usurp the functions of the Sessions Court. It is not for him to decide whether upon the whole this witness or that witness should or should not be believed.

9. The correct view of the matter has, to my mind, been very clearly and accurately expressed by the late Sulaiman J. in Akbar Ali Vs. Raja Bahadur and Others, . In that case his Lordship said: "Section 213 uses the expression not sufficient grounds for committing the accused." This expression is quite different from such expressions as "the case not proved" or "the accused are innocent." I agree with the view of Lindsay J. that when after hearing the evidence for the defence the Magistrate comes to the conclusion that their evidence rebuts that produced for the prosecution, or renders it so incredible or unreliable that a conviction will not follow, he may pass an order of discharge, as expressed by him in Muhammad Abdul Hadi v. Baldeo Sahai AIR 1922 All. 168 .

10. I also fully accept the statement of the law laid down by my learned colleague in Emperor v. Ganpat Lal AIR 1924 All. 664 , that if the Magistrate is satisfied that the charge is without foundation and that there are no sufficient grounds for committing the accused person for trial, he is entitled, and, indeed it is his duty, to discharge him. 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 the Sessions Judges, who are ordinarily more experienced. They are the proper Court 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 discharging the accused, even though he has already framed his charge.

11. 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.

12. In short, though the Magistrate should weigh the evidence and exercise his judicial discretion, the criterion to be applied by him is not quite the same criterion as will be finally applied by the Sessions Court at the trial. If the Magistrate, after weighing the evidence, is satisfied that it is evidence upon which no reasonable Court 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 Court 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, if believed, and that even though, as was observed in Akbar Ali Vs. Raja Bahadur and Others, , he may himself not think the evidence sufficient for a conviction.

13. In such circumstances he should leave it to the Sessions Court to estimate the result of the evidence as a whole after cross-examination and a full trial. These considerations are all the more applicable in a case like the present where there are a number of accused persons, and the evidence led by the prosecution is practically identical against them all. Undoubtedly it is open to any of the accused to satisfy the Magistrate that that evidence is not at all fit to be believed; but if they do, the result should be the discharge of all the accused, and not commitment of some and discharge of others.

14. In my view, the present is a case where all the accused persons should have been committed to stand, their trial.

15. The rule is, therefore, made absolute, the application is allowed, the order of discharge is set aside, and Sheogobind Sahu and Mahadeo Kahar must be committed to the Sessions Court to stand trial together with the other accused in the case.