Robert Lindsay Ross, J.

1. This is an application by Muushi Mander and seven others against an order of the District Magistrate of Bhagalpur, dated the 8th of January, 1924, setting aside an order passed by the Sub-Divisional Magistrate of Madhipura on the 30th of November, 1922, discharging the petitioners under Section 209 of the Criminal Procedure Code in a case under Sections 148 and 304 of the Indian Penal Code which had been brought against them. The District Magistrate by the order complained against has remanded the case to the Sub-Divisional Magistrate with a direction that he should take additional evidence regarding possession of the, disputed land and commit the case to the-Court of Session under Sections 148 - and 304 of the Indian Penal Code. It appears that on the 13th of July, 1922, a riot occurred at Mauza Barhaiya out of which two counter cases arose, information being lodged before the Police by both sides on the 14th. One case was instituted by Karu Mander, the opposite party to the present application against Munshi Mander and other petitioners, and the other case was brought by one Ramphal Gangota against Ram-kishun Singh and others. Karu Mander's information was first investigated with the result that the accused in his case were discharged oh the 30th of November, 1922. An application was then made on behalf of Karu Mandar to the District Magistrate of Bhagalpur against the order of discharge and that application was rejected oh the 6th of January 1923. Karu Mander then made an application to the High Court where it was held that the Magistrate was right in refusing to interfere at that stage and it was observed that after the case which was then proceeding had been tried, the question of reviving the present case could, if necessary, be taken up. There the matter rested until after the disposal of the counter case which ended in the acquittal of the accused on the 8th of October, 1923. On the 17th of November, the District Magistrate was again moved against the order of discharge in Karu Mander's case with the result that he passed the order now under consideration. His grounds for this order are that "the accused in the counter cat e having, been acquitted and it having emerged from that trial that there is evidence to show that Karu Mander was in possession of the disputed land, that the removal of the crops was the occasion of the riot and that the riot occurred in the neighbourhood of the dispused land, it appears to me that there is a prima facie case against Munshi Mander and others."

2. The learned Counsel for the petitioners contended that the District Magistrate, had no jurisdiction to pass the order because he had already passed an order refusing to interfere with the discharge of the petitioners; also that he had no jurisdiction to direct the Sub-Divisional Magistrate to take further evidence and commit the case to the Court of Session. He could either make or direct a further enquiry or order a commitment for trial, but he could not do both; and while ordering the Magistrate to take further evidence, he at the same time fettered his discretion. Further it, was contended that the whole case had been before the Court, that the witnesses for the prosecution had been fully examined, and cross-examined and their evidence had been exhaustively dealt with by the Sub-Divisional Magistrate, and there was no ground, for directing a commitment.

3. I do not propose to discuss the question of jurisdiction although it is not clear to my mind how, after the Magistrate had once refused an application against an order of discharge, he could subsequently grant it. The form of the order does not appear to be proper, but the principal objection is on the merits of the case. The learned Vakil for the opposite party relied upon the decision in Sheobux Ram v. Emperor 9 C.W.N. 829 : 2 Cr. L.J. 534 and contended that the test, for a commitment was laid down in that case and that judged by this test there ought to be a commitment in the present case. It was argued that the Committing Magistrate could only sift the evidence with a view to seeing whether a prima facie case was made out or not, and not to judge guilt or innocence. Now the question that was under consideration in Sheobux Ram's case (1) was whether there was any evidence on which to go to a Jury. If there was none, then that was a ground of law on which a commitment could be quashed. The question in the present case is entirely different; it is whether on the evidence recorded by the Magistrate a commitment should be ordered and whether the commitment which has been ordered under Section 437 of the new Criminal Procedure Code should stand. This was precisely the question which arose in Rash Behari Lal Mandal v. Emperor  12 C.W.N. 117: 6 C.L.J. 760 : 6 Cr. L.J. 408 where it was held that "the High Court has full jurisdiction under Section 437 of the Criminal Procedure Code to revise a commitment order made under Section 436 on points of law as well as of facts." The learned Judges there observed as follows: "The District Magistrate, has based his conclusion on the assumption of the truthfulness of the witnesses for the purposes of the preliminary enquiry before commitment, but in dealing with the evidence he had to consider whether a prima facie case had been made out and to perform in the position of an Appellate Court as nearly the same duties as the Magistrate who had held the preliminary enquiry. It has been repeatedly held by the Superior Courts in India that the Magistrate holding a preliminary enquiry would not exceed his jurisdiction if he examines the credibility of testimony and should not commit a person for trial in the Sessions Court if he be of opinion that notwithstanding direct evidence the case is improbable and the evidence unreliable." This decision was followed in Tinkouri v. Emperor 55 Ind. Cas. 600 : 1 P.L.T. 153 : 21 Cr. L.J. 328.

4. Briefly Karu Mander's complaint was that he was in possession of 26 bighas of land partly on his own behalf and partly through bataidars, and that the accused had come to this land and looted the makai; the counter case was that the riot had taken place not on this land but at a Kamat house some distance off. Before the learned Sub-Divisional Magistrate, the prosecution witnesses were cross-examined and in his judgment their evidence was dealt with with the utmost cafe and fullness, it was found that the bataidars were fictitious; and on the evidence, as presented to the Magistrate, it would be difficult to arrive at any other conclusion. The Magistrate also came to a finding-adverse to Kara Mander's possession of the land itself. He also found the evidence of the looting of the crop unreliable and the statements of the witnesses as to the details of the occurrence materially different from their statements before the Police. He found that the evidence before the police showed signs of an occurrence at the Kamat house and on the field close to it, and not on the field alleged by Karu Mander as the place of occurrence. He also gave weight to the fact that the prosecution had refused to prove a dying-declaration or to examine the Doctor who had recorded it or the attesting witnesses who were present in Court. He commented unfavorably on the fact that four important witnesses were not called by the prosecution which had applied to the Court to examine them as Court witnesses. When this was refused, one of the witnesses was examined by the prosecution and his evidence supported the defence. Now it seems to me that the Magistrate has given sound and sufficient reasons for not committing the accused for trial, and I can find nothing in the judgment or the charge to the Jury of the learned Sessions Judge in trying the counter case, which affects his order. So far as the opinion of the learned Judge is concerned, if seems to have been that the scene of occurrence was not the field alleged by Karu Mander but the neighbourhood of the Kamat house. The fact that Karu Mander may have been in possession of some part of the land which be alleged to be the scene of occurrence, has no material bearing on the question, and the fact that the accused in the counter case were given the benefit of the doubt is in itself, no reason for interfering with the order of discharge. The Sub-Divisional Magistrate went into the case with great care and his arguments which, in my opinion, justified him in refusing to commit, have in no way been met in the order under consideration.

5. In my opinion, this is not a case in which a prima facie, case has been made out. I would, therefore, set aside the order of the District Magistrate and restore the order of the Sub-Divisional Magistrate discharging the petitioners and quash further proceedings.