ORDER
R.J. Bahadur, J.
1. This is an application in revision on behalf of petitioner Tara Pado Mazumdar, who has been committed to the Court of Session to stand his trial under Section 409 of the Penal Code, by a Munsif Magistrate First Class, Hazaribagh. It is prayed that the commitment order be quashed on the ground of illegality.
2. The necessary facts for the present purpose are these : The petitioner was the cashier of a colliery known as Giddi under the National Coal Development Corporation. The allegation against him is that be had defalcated a large sum of money in the capacity of the cashier. A first information report was lodged by P. C. Ahluwalia (P. W. 4), the Deputy Chief Mining Engineer, and the case against the petitioner is that the 21st November, was the weekly payment day of wages to the workers for the week ending the 14th November, 1964. It is said that P. W. 4 had been informed by one T. N. Jaggi (P. W. 3). Superintendent of the Colliery, that there was not sufficient money in the hands of the cashier for disbursement to the labourers for their wages.
The said information caused some surprise as sufficient funds had been recouped for the week ending the 14th November, 1964, and there should have been sufficient cash balance to meet the demand. The case for the prosecution further is that P. Ws. 3 and 4, along with other persons of the Colliery, went to the office of the cashier and asked him to show the cash vault of the Colliery, and he was also asked to show the locker at Bharkunda but no money was found at either of the places. Thereupon, the Accounts Officer of the Colliery (P. W. 2) was asked to examine the accounts with reference to the cash book and he found that the cashier should have been in possession of funds totalling Rs. 54,474.84 Paise, but the amount was not available. Accordingly, the first information report was lodged on the 22nd November, 1964. After investigation of the case, the police submitted charge sheet against the petitioner for defalcation of Rs. 67,000.
3. The learned Munsif Magistrate adopted an inquiry under Chap. XVIII of the Criminal PC, and has approached the case by reminding him. self of the powers of the Committing Court under Section 207A of the Code. He has discussed the evidence in great detail and has ultimately come to the conclusion:
As the evidence is conflicting and the accused was the cashier; go primarily the entire responsibility is upon the accused. Therefore taking into all considerations, I am committing this case to the Court of Sessions for his trial for breach of trust of a sum of Be. 84,972.02 n. p. in between 1541-1964 to 22-11-1964.
4. Mr. Nageshwar Prasad, appearing on behalf of the petitioner, has taken me through the entire evidence for the prosecution, as also the entire order of the learned Magistrate and has contended that there is no evidence of entrust, ment to this petitioner and as such the order of commitment amounts to an abuse of the process of the Court and the commitment should, there, fore, be quashed. The learned Standing Counsel has urged on behalf of the State that when a commitment is made, it can be quashed by the High Court only on the point of law. He has-drawn my attention to the provisions of S 215 of the Code, which is to the effect that once a commitment has been made, it “can be quashed by the High Court only, and only on a point of law.”
The contention is that if the order of commitment is based on no evidence, then it is a fit case to be quashed. I have, therefore, carefully looked into the entire evidence, as also the order of the-learned Magistrate and I am satisfied that there. is evidence on which the order of commitment has been passed. In an inquiry under chap, XVIII of the Code all that the Magistrate has to consider is whether there are sufficient grounds for committing the accused for trial and not whether on appreciation of the whole evidence and other materials in the case ‘the charge against him is proved. Mr. Nageshwar Prasad’s contention is that the learned Magistrate has found that the evidence is conflicting and therefore, in his sub. mission, it amounts to no evidence and as such the commitment is clearly illegal. In my opinion, this contention is untenable because where the evidence is balanced, however unevenly, in the opinion of the Magistrate, then it is clearly & matter which has to be tried and it is his duty to commit the accused for trial.
5. In the present case, I do not wish to express any opinion on the merits of the case and as such I shall make no comments on the evidence of the prosecution witnesses. It is now too well settled that in a committal proceeding the Magistrate should not try to weigh the probabilities of the case and even after balancing the evidence on both sides decide whether the guilt of the accused has or has not been conclusively proved. Even though the Magistrate may weigh the evidence and exercise his judicial discretion, the criterion to be applied by him is not quite the same criterion as would be finally applied by the Court of Session at the trial. In a case where the Magistrate finds that the probabilities have to be balanced and where on the evidence presented before him, a different Court might possibly, in his opinion, can come to a different conclusion from his own, then it is his duty to commit, if the evidence is sufficient for conviction, if believed, even though he may not himself think the evidence sufficient for conviction.
In such circumstances, he should leave it to the Court of Session to estimate the result of the evidence as a whole after cross examination and a full trial. (See for instance Akbar Ali v. Raja Bahadur 24 All L J 133 : AIR 1925 All 670, In my opinion, these considerations are all the more applicable in a case like the present one, where a number of persona have been examined on behalf of the prosecution and the learned Munsif-Magistrate, after discussing their evidence, did not come to the conclusion that it was a case in which no reasonable Court could convict the petitioner and as such he has committed him to the Court of Session for trial it cannot possibly be said that he had acted illegally or with (material irregularity) which would justify an interference by this Court.
6. For these reasons, I am satisfied that the application has no merit and it is, accordingly dismissed.