JUDGMENT Iqbal Ahmad, C.J. and Bajpai, J. - This is an appeal by two brothers Bilas Singh and Kirat Singh who have been convicted by the learned Sessions Judge of Bareilly of an offence u/s 302 I.P.C. and sentenced to death. The learned Sessions Judge has also made a reference to this Court for confirmation of the sentence of death. 2. According to the prosecution the assault which resulted in death took place at about 2 P.M. on the 28th of September 1941, in village Chaubari which is on the left bank of the Ram Ganga river on the main Bareilly-Budaun Road. The murdered man was Ram Dayal Singh and a report of I he occurrence was made at police station Kotwali by Raghubir Singh, the brother of Ram Dayal Singh, at 4 P.M. The distance between the place of occurrence and the police station is about six miles and the report, therefore, cannot be said to have been made after any appreciable delay. 3. According to the report Jagannath Singh and Man Singh, Thakurs of Chaubari and Sobha and Tori Chamars of Chaubari, brought Ram Dayal Singh to the village in a bullock cart and told. Raghubar Singh that Bilas Singh, Kirat Singh of Chaubari and Makku Singh of Akha had beaten Ram Dayal Singh with lathis in Kundri which was to the south of Ram Bilas's charas shop and that several persons in the her had seen the incident. It was mentioned in the report that Ram Dayal Singh who had received a number of injuries could not speak. Raghubar Singh then says that he recently had litigation with the three accused whose names he had mentioned and it was because of this enmity that Ram Dayal Singh was assaulted with lathis and the intention of the accused was to kill him. This report was taken down by the head moharrir Nawal Kishor in the presence of the station officer Chunni Lal. This report was taken down by the head moharrir Nawal Kishor in the presence of the station officer Chunni Lal. Ram Dayal Singh was living when he was brought to the thana and the report was taken u/s 307 I.P.C. It is of some importance to note at this stage that although it is not definitely stated that Jagannath Singh, Man Singh, Sobha and Tori Chamars were eye-witnesses to the occurrence, such an impression might be created by a perusal of the report and although it is said that several other persons in the har had witnessed the incident the names of these persons as eye-witnesses are not given in the report. 4. The sub-inspector Chunni Lal has given evidence in this case and he admits that the report was made in his presence on the 28th of September 1941. He says that he sent Ram Dayal to hospital and he learnt on the 29th of September--the following day--that Ram Dayal Singh had died. He, therefore, prepared an inquest report and sent the body to the mortuary and the case then proceeded as a case u/s 302 I.P.C. 5. Most of the witnesses who have been examined in this case before the learned Sessions Judge were examined by the police on the 29th of September 1941, but two of the prosecution witnesses namely Dal Singh and Yaqin Shah were examined on the 2nd of October. 6. The police as a result of their investigation sent up the case u/s 302 I.P.C. against Bilas Singh, Kirat Singh, Babu Singh, Nanhey Singh, Sarnam Singh and Kedar Singh and noted that Makku Singh was an absconder. 7. A learned Magistrate committed the accused to the Court of session on the 22nd of January 1942 and six persons whom we have named above were tried by the learned Sessions Judge of Bareilly who came to the conclusion that no case had been made out against four of the accused persons whom he acquitted. The Court below, however, was of the opinion that the guilt had been brought home to the two Appellants before us. They were, therefore, convicted and sentenced to death. 8. We have heard Capt. The Court below, however, was of the opinion that the guilt had been brought home to the two Appellants before us. They were, therefore, convicted and sentenced to death. 8. We have heard Capt. Carleton on behalf of the Appellants and the learned Government Advocate on behalf of the Crown and we may state at once that after a perusal of the record and paying due weight to the arguments of Learned Counsel we have come to the conclusion that it is impossible to convict anybody on the prosecution evidence that has been produced in this case. The learned Sessions Judge has not only given the benefit of doubt to the four persons whom he acquitted but is of the definite opinion that they should never have been committed to the Court of session because the evidence against them was wholly insufficient. He, however, thinks that from the first information report it is clear that the three men named in the report actually assaulted the deceased. We shall have to say something in connection with the observations of the learned Sessions Judge about the Committing Magistrate and about prosecuting inspectors in general at a later stage, but at the present moment we wish to say that if the evidence against the acquitted persons was insufficient it is equally so, so far as the Appellants are concerned and the first information report on which the learned Judge relies instead of helping the prosecution helps the accused. 9. We have given a summary of the first information report earlier and it is clear from that report that Jagannath Singh, Man Singh, Sobha and Tori gave to Raghubar Singh the names of the three assailants Bilas Singh, Kirat Singh and Makku Singh. In the Magistrate's Court Raghubar Singh said that he had named those three men because of a conversation with Munshi Sadiq Husain, second officer. Munshi Sadiq Husain was examined by the learned Magistrate and he said that he had no conversation with Raghubar Singh on that day because he was on duty at the Ramlila procession. In the Court of session Raghubar Singh says that Jagannath Singh. Man Singh, Tonde and Sobha did not tell him the names of the assailants and although there was a large crowd collected round Raghubar Singh's house none of them had named the accused to him. In the Court of session Raghubar Singh says that Jagannath Singh. Man Singh, Tonde and Sobha did not tell him the names of the assailants and although there was a large crowd collected round Raghubar Singh's house none of them had named the accused to him. It naturally strikes one as something very surprising as to how then Raghubar Singh mentioned the names of Bilas Singh, Kirat Singh and Makku Singh as the assailants of his brother and Raghubar Singh comes out with a still more surprising explanation. He says that he saw Bilas, Kirat and Makku in the thana and therefore he suspected them and that is why he mentioned them in the report. From the evidence of the station officer Chunni Lal it is clear that Bilas or Kirat did not go to the thana till about 9 P.M. and according to the statements of these two accused also it appears that they did not go to the thana till about 9 P.M. The station officer with this report of Raghubar Singh naturally arrested Kirat Singh and Bilas Singh when they reached the thana. Presumably they had gone to the thana because, as they say, when they came to their village from Bareilly they learnt that their names had been taken at the police station and they, therefore, went there either to make some sort of a report or to find out exactly what was being done. 10. The learned Judge evolves some sort of an explanation regarding the mention of these three names in the first information report, but we find it very difficult to understand what exactly the learned Judge wishes to suggest. 10. The learned Judge evolves some sort of an explanation regarding the mention of these three names in the first information report, but we find it very difficult to understand what exactly the learned Judge wishes to suggest. Some of the prosecution witnesses who posed as eye-witnesses of the occurrence say that they mentioned the names of the assailants not to Reghubar Singh but to Ram Dayal Singh's wife who lives in a separate house at a distance of about 300 paces and one or two witnesses also say that they saw Ram Dayal's wife at the place where Ram Dayal was brought on a cart after the assault and the learned Judge seems to think that Ram Dayal's wife might have mentioned some names to Raghubar Singh and Raghubar Singh may have forgotten those names or may have remembered only some of them viz., those that he gave in the first information report, but that is not what Raghubar Singh says and we find it impossible to believe that Raghubar Singh would not have mentioned this fact either in the first information report or before the Committing Magistrate or at least before the learned Sessions Judge. All the accused excepting Makku Singh were residents of the village Chaubari where Raghubar Singh also resides and most of them have had litigation with Raghubar Singh and his brothers and it is impossible to believe that Raghubar Singh would have forgotten their names if anybody had given their names to him. The main plank, therefore, on which the learned Sessions Judge convicts the two Appellants before us, namely the first information report, goes away and for the rest the evidence against them is exactly the same as the evidence against the four persons who have been acquitted. 11. We shall now discuss the evidence of the various prosecution witnesses. 12. [Their Lordships then discussed the evidence and proceeded:] 13. These are all the prosecution witnesses in the case and like the learned Sessions Judge we are of the view that their testimony does not inspire confidence and it is not possible to maintain the conviction of the two Appellants before us. We have already said that the first information report supported by the testimony of the maker of the report--Raghubar Singh--does not help the case for the prosecution; on the contrary it seems to weaken the case. We have already said that the first information report supported by the testimony of the maker of the report--Raghubar Singh--does not help the case for the prosecution; on the contrary it seems to weaken the case. We have, therefore, no option but to allow the appeal. 14. Before parting with this case we have got to say something about the comments made by the learned Sessions Judge regarding the Committing Magistrate and regarding the prosecuting inspectors in general. Before, however, we do so we might say that the record made by the learned Sessions Judge of the evidence of witnesses in this case is not so full as it ought to be. The printed record in this Court is prepared from the English notes of evidence, but in this case we have had to look into the vernacular record in the case of almost every witness. We do not consider it necessary to give a catalogue of the various omissions which the learned Sessions Judge made while recording evidence. Suffice it to say that there were omissions and some of them were important too. 15. As regards the commital in this case the learned Sessions Judge says: The learned Magistrate admits in the last paragraph of his order that on further scrutiny he might have discharged some of the accused by discussing their case individually but he refrained from doing so because the prima facie evidence against all the accused was overwhelming, if the eye-witnesses were to be believed. It is the duty of the Committing Magistrate to scrutinize the evidence against each accused before committing him to sessions and putting him to the trouble and expense of a sessions case. The learned Magistrate just above makes a very sensible remark: To me it appears that because of his enmity with the accused, Raghubar Singh thought the murder of his brother to be a suit able opportunity for avenging himself on his old enemies. This remark means that the evidence of the eye-witnesses should have been carefully considered before all the accused were committed... 16. The learned Sessions Judge then referred to Section 210 Code of Criminal Procedure. The relevant provisions of law in this connection are Sections 209 and 210 Code of Criminal Procedure. A Magistrate can discharge an accused, after recording his reasons, only if he finds that there are not sufficient grounds for committing the accused person. 16. The learned Sessions Judge then referred to Section 210 Code of Criminal Procedure. The relevant provisions of law in this connection are Sections 209 and 210 Code of Criminal Procedure. A Magistrate can discharge an accused, after recording his reasons, only if he finds that there are not sufficient grounds for committing the accused person. The same phraseology occurs in Section 210 and the words have been interpreted by all the High Courts in India as meaning that in commitment proceedings what the Magistrate has to see is whether there are sufficient grounds for commitment and not whether there are sufficient grounds for conviction. Where there is a good prima facie case for commitment the Magistrate is bound to commit the accused and is not empowered to enter into nice questions of the probabilities of the case and discharge the accused on the ground that in his opinion the evidence was not sufficient to sustain a conviction. In making these observations we are not Unmindful of the fact that in certain cases the time of the sessions court is wasted and the accused are put to unnecessary harassment because of the omission of the Magistrate to scrutinise the evidence with a view to finding whether a good prima facie case has been made out against the accused or not. this Court on numerous occasions has pointed out that the Magistrate should not as a general rule, play the role of a post office only and commit an accused to the Court of session when there is not even a remote probability of the case ending in a conviction. At the same time the Magistrates cannot assume the functions of a Sessions Judge and take upon themselves the duty of sifting the evidence in cases which are on the border line In this particular case we think the Magistrate could not have taken upon himself the responsibility of discharging any one of the accused when, according to the prosecution, there were no less than seven eye-witnesses and there was admittedly hostility between some of the accused and Ram Dayal Singh which might have afforded a motive for the offence. 17. We now wish to discuss the comments of the learned Sessions Judge about prosecuting inspectors in general. 17. We now wish to discuss the comments of the learned Sessions Judge about prosecuting inspectors in general. He says: We are not administering divine justice or even what might be called natural justice, i.e., rough and ready justice among simple and primitive people. We are administering a highly developed system of law among sophisticated and litigious people who have the benefit of extremely experienced lawyers and are protected by rules of evidence and procedure and thousands of High Court rulings. If prosecuting officers in the Magistrates' Courts were trained lawyers instead of being members of the Police Department who have not the benefit of consulting their colleagues and learning from the experience of a competitive profession, these mistakes could not be made. An experienced lawyer prosecutor would not have pressed the case against these four accused because he would have known that his colleagues in the bar would regard such conduct as grossly incompetent. No such criticism affects Government servants who are sheltered by the terms of their service. The retention of prosecuting inspectors in the Magistrates' courts is a blot on the criminal administration for which there is no excuse, especially at the present time when it is of the utmost importance that the public should rely on the efficiency of the criminal administration and should be given the benefit of the legal profession which is in close touch with public opinion and which is by far the most numerous and best organised profession in the country. It is impossible to expect Magistrates to do their work quickly and efficiently if they are assisted only by another department of the Government service. 18. We regret that we are unable to endorse this opinion of the learned Sessions Judge in its entirety. Both of us were members of the bar and one of us was a Government Advocate for some years and although we cannot claim the same experience which the learned Sessions Judge might have in these matters, we do not think that prosecuting inspectors as a whole are a blot on the criminal administration. They as sub-inspectors receive training in the investigation of cases and later on when they are appointed as prosecuting inspectors they are appointed because of their experience in criminal matters and also in the law of Criminal Procedure, Evidence and Indian Penal Code. They as sub-inspectors receive training in the investigation of cases and later on when they are appointed as prosecuting inspectors they are appointed because of their experience in criminal matters and also in the law of Criminal Procedure, Evidence and Indian Penal Code. They have to appear at an examination in these three branches of law and the papers are the same as are set for the Bachelor of Laws examination of the University. It cannot, therefore, be said that they are persons who are ignorant of law. It may be that if experienced lawyers could be prosecuting inspectors they might be able to conduct cases better than the average prosecuting inspector, but some prosecuting inspectors are very experienced officers and they conduct in the majority of cases the prosecution which great efficiency and care. The police line is open to lawyers and if they choose to come in the regular way in the police service as sub-inspectors it will be for the Government to decide whether the lawyer sub-inspectors should not be preferred to non-lawyer sub-inspectors when occasion arises. We however, consider that we shall be doing great injustice to the police service by endorsing the observations of the learned Sessions Judge which do not appear justifiable to us. 19. We have discussed the case in all its bearings and although we do not agree with Learned Counsel for the Appellants that this murder was the work of some desperadoes who has some differences over charas with Ram Dayal Singh who was a charas vendor, although we have a lurking suspicion that some of the accused in this case are probably responsible for the offence and that justice has been baulked of its victims, yet we feel that the evidence in the present case is so unworthy, of belief that we cannot possibly convict the Appellants before us. We, therefore, allow this appeal, set aside the conviction and sentence of the Appellants and direct that they be released forthwith unless wanted in connection with some other case.