Jwala Prasad, J.

1. This application is directed against the order of the District Magistrate of Purnea, dated the 3rd January 1920, passed under section 435 of the Code of Criminal Procedure directing that the petitioner be committed for trial for an offence under section 395, Indian Penal Code, on the ground that he was improperly discharged by the Magistrate who held the enquiry under Chapter XVIII of the Code of Criminal Procedure, which relates to enquiries into cases triable by a Court of Session. The Magistrate who held the enquiry came to the conclusion that the case for the prosecution was not proved and the witnesses examined on behalf of the prosecution were not only discrepant but were also wholly unworthy of discredit.

2. There was dacoity in the house of one Resam Lal, master of the complainant, on the 1st July last. Resam Lal was sleeping with his children in the Haveli and on the outer side in the Baithak was the complainant with a few other persons, Misri Lal, Gopi, Asarfi, Naira, Nekoni, Kochi and Sosti Lal. At about midnight there was a shout of "Jai Kali". Fifteen or sixteen men were then seen coming. They attacked the Baithak, snatched the straw from the roof and lighted it by means of matches, and then lit two Masals which they are said to have brought with them. The dacoits are said to have covered their faces with Galpattas. Seeing the dacoits the complainant was frightened. He ran to the northern Tola, awoke some of the villagers, Gopali, Premi, Sufli and others, and told them that dacoits had come to Resam Lal's house, Resam Lal himself came out of the house and went to the Basti side. The Basti people came, and the dacoits disappeared having looted whatever they could get in the Baithak and, according to Resam Lal's case, also some of the properties in the inner apartment of the house.

3. Two persons, the petitioner and one Manmohan Rai, were sent up for trial with a charge under section 395, Indian Penal Code. It is immaterial, so far as the application before as is concerned, whether the dacoity actually took place or not. The whole case hinges upon whether the accused were properly identified or not.

4. The Magistrate was of opinion that the evidence given as regards the identity of both the accused persons was unacceptable and discharged them. The District Magistrate apparently agreed with the Magistrate in holding that the case against Manmohan Rai was not proved and that the discharge by the Magistrate in respect of him was proper. He, however , thought that there was prima facie evidence of identification against the petitioner Tinkouri, and accordingly directed under section 436 of the Code that he be committed to the Court of Session.

5. The learned Government Advocate contends that the Magistrate was not justified in law in discharging the accused on the ground that the evidence before him was not trustworthy. In the view of the learned Government Advocate that involved the entire trial of the accused and a detailed and minute scrutiny and examination of the witnesses for the prosecution and that was a function reserved by the Code in the Sessions Judge, and not in the Magistrate, whose duty was simply to record the evidence, to find out whether there was a prima facie case made or not against the accused and then to commit him to the Court of Session. This is the view of the District Magistrate also. I am, however, of a contrary opinion. Under section 210 of the Code of Criminal Procedure a Magistrate is required to commit the accused when he is satisfied "that there are sufficient grounds for committing the accused for trial." This confers upon him the power to discharge the accused when the evidence tendered for the prosecution is totally unworthy of credit, as observed in the case of Bai Parvati, In re 8 Ind. Cas. 631 : 35 B. 163 : 12 Bom. L.R. 923 : 11 Cr.L.J. 692. The view taken in that case has been quoted with approval in the case of Dharam Singh v. Joti Prasad 28 Ind. Cas. 1005 : 37 A. 355 : 13 A.L.J. 497 : 16 Cr.L.J. 429. Some of the earlier authorities in that case seem to have given a narrower construction to section 210 of the Code of Criminal Procedure and a restricted power to a Magistrate under that section. The case of Sash Behari Lal Mandal v. Emperor  12 C.W.N. 117 : 6 C.L.J. 760 : 6 Cr.L.J. 466 decided in the year 1907 by the Calcutta High Court exactly applies to this case, where it was held that it is well within the province of a Magistrate holding an enquiry under Chapter XVIII to weigh the evidence and examine the credibility thereof, and to discharge the accused when he comes to a conclusion that the prosecution case is improbable and the evidence unreliable. Upon a true construction, meaning and scope of the section itself I may mention that a Magistrate has power to weigh the evidence and discharge the accused if the evidence is found to be unreliable. It was further held that High Court can go into evidence and as a matter of fact the learned Judges in that case went into the evidence in order to find out whether the order passed by the District Magistrate under section 436, disagreeing with the view of the Commitment Magistrate and directing the commitment of the accused, was proper or not.

6. Coming to the merits of the case, the question for determination is whether the evidence as to the identity of the petitioner is acceptable or not. The District Magistrate has based his decision largely upon the statement of the complainant in the first information report as well as in Court, who stated that the accused was recognized by him. The information was lodged at 8 a.m. of an occurrence having taken place about midnight at a Thana situated only 3 miles away. Some delay may be explained by the circumstance stated by the District Magistrate that there was some stream to cross, but the complainant did not start for the Thana before 7 a.m. or thereabout and hence it is open to criticism that there was time enough to cook up a story and to implicate the accused. It may be conceded that the Chaukidar, who was called as a witness on behalf of the Court, was gained over and the prosecution was, therefore, not bound to examine him on its behalf. He is supposed to have come long after the dacoits left the place and could not, therefore, he a witness as to the identity of the accused. The District Magistrate says that the Chaukidar stated before the Police that he identified the accused. This has not been brought out by the prosecution in his cross-examination. Even if he made that statement before the Police, it will not be any substantive evidence against the accused. It may be possible to explain away some of the contradictions and the embellishments in the case of the prosecution as being due to over-zeal on behalf of the complainant and his witnesses, but it is impossible to discard the inherent improbability in the story told by the witnesses for the prosecution that in spite of their having recognized Tinkouri, the accused in the case, who was not inclined friendly towards Resam Lal as the previous litigation discloses, they did not mention the name of the accused when the villagers assembled after the dacoity was over and the dacoits had gone away, and while they were sitting at case smoking and enjoying country pipes. The one and the only topic that must have been discussed in that gathering of the Basti people was--Who were the dacoits that so daringly committed the offence upon an important person in the village, the Patwari and the Tahsildar. Not only the complainant but also all the other witnesses who posed themselves to be the identifiers of the accused say unmistakably that they did not on that night tell anybody that they had recognised the accused. The village people gathered long before the arrival of the Chaukidar. The omission of the witnesses to state that they identified the dacoits, to the village people is serious. There is, therefore, no escape from the criticism that the dacoits were not identified by anybody. They had concealed their fanes with Galpattas and probably on the shout of "Jai Kali" given by them the witnesses got frightened and ran away.

7. The Magistrate has discussed the evidence in detail and has given his reasons for not accepting it. The District Magistrate has not discussed the evidence, and it is not known whether he himself would have convicted the accused upon the evidence. I myself have carefully gone through the evidence and I do not think that any Court would upon the evidence as it stands, without any cross-examination, feel hesitation in acquitting the accused. I, therefore, agree with the Magistrate in his estimate of the evidence, allow the application and set aside the order of the District Magistrate directing the commitment of the petitioner. The petitioner is discharged.