JUDGMENT
L.S. Mehta, J.
1. On March 17, 1971, at about 2 P.M., Bhagwan Das (P.W. 1), an employee of the State Bank of Bikaner and Jaipur, Bayana Branch, lodged first information report with the Police Station, Bayana, alleging therein that very day at about 1-30 P.M 8 persons raided his Bank and decamped with Rs. 16,261. 23 P. and other articles. It was further mentioned in that document that one of the dacoits was Nalin Kumar, a resident of Bayana. Two dacoits had pistols with them. One had a hand grenade. The remaining culprits were armed with knives. All the 8 persons asked the Bank employees, the moment they entered the Bank premises, to stand up and raise their hands other wise they would be killed. Two of the dacoits disconnected the telephone line. Some of the miscreants gave beating to Bhagwan Das and other Bank employees and they were also made to stand near a wall. The dacoits then broke the cash-box and took out the aforesaid amount and other articles. Thereafter all the 8 dacoits ran away in a bluish Ambassador car, bearing registration No. D.LJ. 7458. On receipt of the report the police registered a case under Sections 395 and 397, I.P.C. It is alleged that in the course of investigation money was recovered from the possession of some of the dacoits. After investigation was completed, a challan was presented to the court of Additional Munsiff-Magistrate who recorded the evidence of all the 8 eye-witnesses during the committal proceedings and after hearing arguments advanced on behalf of both the parties committed Nalin Kumar and 7 others to the Court of Sessions Judge, Bharatpur, to face trial under Sections 395 and 397, I.P.C. Against that commitment order Nalin Kumar took a revision application in the Court of Sessions Judge, Bharatpur, praying therein that the commitment order so far as the applicant was concerned being illegal should be ordered to be quashed. Learned Sessions Judge, Bharatpur, in this order dated January 11, 1972, observed that as the name of Nalin Kumar appeared in the first information report, a valuable document, it could not be said that there was no evidence at all against him. He accordingly declined to set aside the commitment order.
2. Aggrieved by the above finding, Nalin Kumar has submitted this revision-application to this Court Learned Counsel for the petitioner Mr. J.K.Mathur submitted that a serious irregularity has been committed by the Additional Munsiff Magistrate, Bayana, committing the petitioner to the Court of Sessions Judge, Bharatpur, in the absence of an iota of evidence connecting him with the crime and further that the Sessions Judge Bharatpur, has also fallen into error in solely relying upon the first information report filed by Bhagwan Das (P.W. 1), as that document does not constitute a substantive piece of evidence. He, in the end, urged that proceedings against the petitioner Nalin Kumar in the trial court would result in harassment to him and would eventually bear no fruit whatever, Learned Deputy Government Advocate argued that since the name of the petitioner appears in the first information report, trial should continue and it would be too early to reach the conclusion at this stage that there is no evidence against the petitioner in regard to the commission of the crime.
3. I have been taken through the entire evidence recorded by the committing Court, with meticulous care Bhagwan Das (P W 1) who lodged the first information report, has unequivocally stated that he was well acquainted with Nalin Kumar, but he was not present in the dock There is a note of the committing Court below this version to the effect that Nalin Kumar was present in the dock. That shows that Bhagwan Das could not identify the petitioner before the committing Magistrate. P W 2 Jugal Kishore Manager of the Bank, has unreservedly said that he had not seen Nalin Kumar at the time of the dacoity. To the same effect are the statement of P.W 3 Radhey Charan. P.W. 4 Murari Lal Sharma, PW 5 Shiv kumar Sub, P.W 6 Suresh Chandra Goel and P.W. 7 Radhey Shyam Sharma, employees of the Bank and the eye-witnesses of the occurrence. P.W 8 Amba Prasad says that he could not say whether or not Nalin Kumar participated in the dacoity.
4. The aforesaid 8 eye-witnesses do not support in the least the association of Nalin Kumar with the dacoity. It is true that Nalin Kumar’s name does appear in the first information report. The first information report is the information recorded under Section 154, Cr. P.C. It is an information given to a police officer relating to the commission of a crime It is an information furnished to the police by an informant on which the ‘investigation is commenced. It can only be used to corroborate or contradict the evidence of the informant given in the court or to impeach his credit It follows that a court cannot treat the first information report as a substantive piece of evidence. It can only refer to that portion, which had been used for one or other of the aforesaid purposes. In this connection a reference is made to State of Bombay v. Rusy Mistry . In a recent decision reported as Hasib v. State of Bihar his Lordship Dua J. said.
The report does not constitute substantive evidence though it is important as conveying the earliest information about the occurrence.
The result of the above discussion is that mere insertion of the name of an accused-petitioner in the first information report without other evidence on the record would not alone be sufficient to connect him with the crime.
5. It has been held by this Court in Brahmanand v. State of Rajasthan AIR 1970 S.C. 220 that a Magistrate holding a preliminary inquiry has to satisfy himself that a prima facie case is made out against a culprit by the evidence of witnesses, entitled to a reasonable degree of credit, and unless he is so satisfied, he has not to make any commitment order In Halsbury’s Laws of England. Vol. 10 3rd Edition, Article 666, P. 365, the law has been stated like this:
When all the evidence has been heard, the examining justice then present who have heard all the evidence must decide whether the accused is or is not to be committed for trial.
A Magistrate inquiring into a case is not to act as a post-office. He has to reach the conclusion whether or not a case before him is fit one for commitment to the Court of Sessions. It is true that a Magistrate need not weigh the pros and cons of the prosecution and defence version. Nevertheless it is a well-established principle that the Magistrate has to satisfy himself whether prima facie case has been brought home against the accused by the evidence of witnesses. The Magistrate in this case has not, it appears, looked into the prosecution evidence and without doing so he reached the conclusion that their existed prima facie case for the commitment of Nalin Kumar. He simply took into consideration the insertion of his name in the first information report and committed him to the Court of Session Judge for trial, in my opinion, has not properly discharged his function in this case.
6. Learned Deputy Government Advocate argued that when the name of Nalin Kumar appears in the first information report, he should be tried along with the other accused persons and it will be for the trial Judge to decide whether or not he is guilty to the crime of dacoity. According to him, the determination of this question is a question of law and this Court should not interfere with the commitment order at this stage. In this connection a reference is made to B. Alimuddin v. State of West Bengal . In that case it has been observed by their lordships of the Supreme Court that where the order of commitment passed by the Magistrate is not based on any evidence and it has the effect of harrassing the appellant, it is a fit case in which the commitment should be quashed. Again the Alamohan Das and Ors. v. The State of West Bengal , it has been laid down by their Lordship’s of the Supreme Court that interference in revision filed against the order of commitment under Section 207, Cr. P.C is justified only where a substantial question of law arises on which the correctness of the order of commitment may be effectively challenged and where there is no evidence on which the order of commitment could have been made. In Rajpal Singh v. Jai Singh , his Lordship Shelat J., speaking for the Court, said:
In a case 209 the Magistrate holding the preliminary enquiry has to be satisfied that a prima facie case is made out against the accused by the evidence of witnesses entitled to a reasonable degree of credit and if he is not so satisfied, he is not to commit.
In Bipat Gope v. State of Bihar , his Lordship Hidayatullah J., observed:
In an inquiry the committing Magistrate has to find out that there is evidence which, if believed, will establish at least a prima facie case.
It is thus clear that in the absence of prima facie case commitment order can be assailed and this Court can interfere with it. The evidence discussed above, without an attempt to appreciate or weigh it to determine whether it is believable or not, does not in any manner implicate Nalinkumar. There is, apart from his name appearing in the first information report, not an iota of evidence connecting him with the crime. To allow continuance of the trial against him would, in the circumstances of case, result in nothing but harassment to him.
7. I, accordingly, consider that this is a fit case in which the commitment order, in so far as Nalinkumar is concerned, should be quashed, which, I do. The revision application is accordingly allowed.
