JUDGMENT
Piggot, J.
1. As long ago as the 27th of January 1914 a serious riot, accompanied with loss of life, took place at a certain village in the Saharanpur District. A number of persons were put on their trial and convicted of offences punishable under Sections 148 and 304/149, Indian Penal Code. They appealed to this Court and their appeals were disposed of by an order dated the 27th July 1914, by which the appeals of three of the appellants were allowed and those of the remaining appellants dismissed, subject to some modification of the sentences passed. In the course of the inquiry and trial ending with the Appellate judgment of this Court above referred to, a question arose as to whether there was not reason to suppose that the persons put on their trial in that case had been acting under the instigation of other and more influential persons, who, though not present at the riot themselves, had been guilty of abetment of the same within the meaning of the Indian Penal Code. An inquiry was ordered against two persons, Rana Dharam Singh and Durga Prasad, and one might have hoped that this inquiry would long since have been terminated in the conviction of these persons, or in their acquittal, or in their final discharge. The proceedings were unfortunately delayed by an application for transfer made to this Court, the groundlessness of which has been sufficiently exposed by the actual result of the subsequent proceedings. This Court having refused to interfere, the inquiry against these two persons came before a joint Magistrate of ability and experience, who had not long previously been exercising the powers of a Sessions Judge. He recorded the evidence for the prosecution, examined the accused persons and at their request, exercised the discretion conferred upon him by Section 212 of the Code of Criminal Procedure to summon and examine some of the witnesses named in the list given to him on behalf of the said accused. As the result of his inquiry he discharged both the accused. An application was thereupon filed in the Court of the District Magistrate of Saharanpur by a gentleman of the name of Rai Bahadur Lala Jyoti Prasad, who appears to have some interest in the success of this prosecution, asking the District Magistrate to exercise the powers conferred upon him by Section 436 of the Code of Criminal Procedure to order Rana Dharam Singh and Durga Prased to be committed for trial before the Court of Session. The matter was again brought before this Court on an application for transfer. Unfortunately the proceedings in this Court were delayed by various accidental circumstances, and it became a question whether this proceeding could be allowed to drag its course much longer without scandal to administration of justice. I finally called for the record of the proceedings in the Joint Magistrate’s Court and gave notice both to the prosecution and to the defence that I proposed to take the whole matter up in the exercise of the revisional jurisdiction of this Court. I have to-day examined the record, considered the evidence in detail and heard the arguments addressed to me on both sides. There has been some discussion also on a point of law which is supposed to arise with regard to the discretion of a Magistrate in conducting an inquiry preliminary to commitment. The law, so far as this Court is concerned, seems to have been definitely laid down in the case of Fattu v. Fattu 26 A. 564 : A.W.N. (1904) 125 : 1 A.L.J. 292 : 1 Cr. L.J. 519 where some older cases of this Court are referred to and considered It has been urged upon me in argument that the, learned Judges of the Calcutta High Court, as for instance in the case of Sheobux Ram v. Emperor 9 C.W>N> 829 : 2 Cr. L.J. 534 have taken a somewhat different view regarding the discretion of a Magistrate under the circumstrnces stated. One learned Judge of that Court laid it down in effect that a Magistrate conducting such preliminary inquiry had only to consider whether there was evidence against the accused persons upon which a Jury could lawfully convict them of the offence alleged against them, and if he found that this was so, had no discretion but to commit the accused for trial. This does not seem to me to follow from the provisions of Sections 209 or 210 of the Code of Criminal Procedure, and seems scarcely consistent with the provisions of the second Clause of Section 213 of the same Code. The Bombay High Court in In re Bai Parvati 8 Ind. Cas. 631 : 35 B. 163 : 12 Bom. L.R. 923 : 11 Cr. L.J. 692 has held in express terms that, where a Committing Magistrate-finds that there is no evidence whatever, or that the evidence tendered for the prosecution is totally unworthy of credit, it is his duty; under Section 209 of the Criminal procedure Code to discharge the accused. In my opinion when a Magistrate has heard the evidence for the prosecution with entire disbelief, when he considers himself in a position to show that the prosecution witnesses are totally unworthy of credit, and a fortiori when, after examining certain witnesses named on behalf of the accused, he has come to the conclusion that the evidence given by them is reliable and disproves. that given by the prosecution witnesses, he is well within his discretion in discharging the accused. The question then before me is merely whether there has been a wrong exercise of this discretion in the present case. By calling up the matter in revision I have virtually taken upon myself the exercise of the discretion conferred by law on a District Magistrate or a Court of Session. My reasons for doing this I have already explained. I think it is expedient that this matter should be disposed of once for all, either by my directing the commitment of Rana Dharam Singh and Durga Prasad to the Court of Session or by an order dismissing the application of Rai Bahadur Lala Joti Prasad against the order of discharge. In my opinion the reasons given by the Magistrate in the present case for discrediting the prosecution evidence are sound and convincing. As regards some of the witnesses, incidents had occurred in the course of the inquiry by which their evidence was thoroughly discredited, and it would have been something of a scandal to the administration of justice to permit the same witnesses to repeat their false evidence, with necessary corrections and amendments, in the presence of the Sessions Court. The witness Harbans was asked in cross-examination a question so entirely relevant and proper that, after perusal of his evidence-in-chief, this was the very first question which presented itself to my mind and I enquired whether it had not been put to the witness. After fencing with it for a while, the witness ended by refusing to answer it at all. H would have been most improper to have allowed this witness to appear again as a prosecution witness against these accused persons, and the Joint Magistrate would have exercised a sound discretion in taking immediate notice of the gross contempt of Court committed by him. During the examination of another witness an episode occurred from which the Joint Magistrate inferred, and in my opinion rightly inferred; that the prosecution witnesses were being improperly coached outside the Court-room with reference to what was going on inside. These are sufficiently weighty circumstances for consideration. Apart from them I am satisfied that the evidence which the Joint Magistrate declined to believe is unworthy of credit. The witnesses are not speaking of anything which actually occurred in their presence. Whether there was or was not a gathering at the building which they speak of as the zemindar’s dera on the night to which their evidence refers, I am confident that these witnesses were not present at that gathering and did not see or hear what they profess to have done. The order of discharge in this case is a very proper one and is not to be interfered with. It may be taken that I have exercised the powers of this Court under Section 526, Clause (3), and also under Section 439 of the Code of Criminal Procedure to call up the pending application of Rai Bahadur Lala Joti Prasad from the Court of the District Magistrate of Saharanpur to this Court, and my order thereon is that this application be, and it is hereby, dismissed.
