ORDER B.N. Lokur, J. - This case started on a private complaint filed by Ram Asre on 19th February, 1968, in the court of the Addl. Distt. Magistrate (J), Hamirpur. Ram Asre alleged that on 2nd August, 1967, about sunset time, he had gone to his field when he found Maharajwa and Viseswar, two of the seven Applicants in this revision application grazing their cattle in the field; they paid no heed to the protest of Ram Asre, whereupon Ram Asre driving the cattle to a cattle pond. The remaining five Applicants in this revision application, who were said to be lying in ambush, came out in the open and joined Maharajwa and Viseswar. Applicant Sahdeo was armed with a gun, while the other six Applicants were armed with lathis and Maharajwa brandished his lathi at Ram Asre, who, however, warded it off by retraining and himself hit a lathi blow on Maharajwa in self-defence. Maharajwa receded back. Thereupon Applicants Sahdeo Viseswar and Maiyadin advanced towards Ram Asre and Sahdeo fired a (sic) at Ram Asre with the gun he was carrying. The gun shot did not hurt Ram Atlre as he lay on the ground. On hearing the report of the gunshot, Ram (sic) brother, Babu Singh and Brij Kishore, Paras Ram and Ghhiddoo arrived on the spot and as Sahdeo was attempting to reload his gun with a view to firing a second shot, Babu Singh fired a shot with his gun which caused injuries to Applicants Maiyadin, Viseswar and Sahdeo. The incident closed on the intervention of witnesses. It was alleged that Babu Singh proceeded to the Police Station next morning and lodged a report of the occurrence, but the Sub-Inspector, instead of taking down the report, arrested him and forwarded him to jail. Ram Asre then made an application to the Supdt. of Police complaining about the incident and the Supdt. of Police ordered an enquiry. A case was registered in accordance with the application but, according to Ram Asre's complaint, no investigation was made by the police even though Babu Singh had also made another application to the Supdt. of Police. Ram Asre has explained that in these circumstances he made a complaint to the Magistrate directly. 2. of Police ordered an enquiry. A case was registered in accordance with the application but, according to Ram Asre's complaint, no investigation was made by the police even though Babu Singh had also made another application to the Supdt. of Police. Ram Asre has explained that in these circumstances he made a complaint to the Magistrate directly. 2. The allegations in the complaint, constitute offences Under Sections 147, 148, 307 and 440 read with Section 149 of the IPC and Section 24 of the Cattle Trespass Act and the Magistrate has either to discharge the accused u/s 209 of the Code of Criminal Procedure OP commit them to stand trial, decision. 3. The seven accused who are the seven present Applicants pleaded not guilty and contended that they were falsely implicated due to enmity. Maiyadin, Viseswar, Maharajwa and Sahdeo put forward a counter version that Maiyadin was waylid by Babu Singh, Ram Asre and four others and was beaten. Viseswar and Maharajwa also claimed to have been beaten while Sahdeo alleged that Babu Singh tried to kill him by firing a shot at him. A counter-case was filed by them and it appears that the case? has been committed to the Court of Sessions in respect of the incident set up by the seven Applicants and is pending. 4. In support on his complaint, Ram Asre examined himself, his brother Babu Singh, Paras Ram and Brij Kishore and also secured production of his application to the Supdt. of Police and the First Information Report prepared on the basis, of that application under the orders of the Supdt. of Police. The learned Magistrate, discharged all the seven Applicants, holding that the complaint was a "pure concoction" and that "the charges levelled against the present accused are groundless". 5. Ram Asre went up in revision to the Sessions Court against the order of discharge and the First Temporary Civil and Sessions Judge exercising; his powers u/s 437 of the Code of Criminal Procedure set aside the order of discharge and directed the Magistrate to commit the case to the Court or Sessions for trial. The seven Applicants who were the accused before the Magistrate seek to have the order of the First Temporary Civil and Sessions Judge set aside and to have the order of discharge passed the Magistrate restored. 6. The seven Applicants who were the accused before the Magistrate seek to have the order of the First Temporary Civil and Sessions Judge set aside and to have the order of discharge passed the Magistrate restored. 6. Two questions of law have bean canvassed at the Bar and it is desirable to discuss these questions at the outset. The first question relates to the powers of the Magistrate u/s 209 of the Code of Criminal Procedure and the second question is in regard to the; powers of the Sessions Judge u/s 437 of that Code. 7. On the first question, it may be noticed that u/s 209 of the Code of Criminal Procedure, which in terms applies to proceedings instituted otherwise than on a police report, the Magistrate is competent to discharge the accused if he finds that there are not sufficient grounds for committing the accused person for trial. It was argued by the learned Counsel for the Applicants that the learned Magistrate has recorded a categorical finding that the charges levelled against the Applicants ate erroneous and the learned Magistrate was hence justified in discharging the Applicants. On the other hand, the learned Counsel for Ram Astray pointed out that the learned Magistrate has evaluated the evidence in recording his order of discharge arid has acted in excess of his powers u/s 209 which, according to him, prohibits the Magistrate from evaluating the evidence and requires him merely to consider whether the evidence, if believed, would result in conviction of the accused. 8. In Mahadeo v. Satya Narain 1953 AWR 167 Beg, J. (as he then was) observed that though the power u/s 209 is not so wide as that u/s 253, it cannot be said that while acting u/s 209, the court of enquiry is to become a mere automation and cannot sift the evidence and believe or disbelieve the witnesses. In Muinuddin Qureshi v. Ghulam Rasool 1666 ALJ 757, Uniyal J. considered the deference in language of Section 209 and Section 207-A (which deals with the powers of a Magistrate in proceedings instituted on a police report) and observed: The sufficiency of the grounds is, therefore, a material factor, u/s 209 in deciding as to whether the accused ought to be committed or discharged. Surely a Magistrate can do this only by the method of examining the evidence in the light of its reliability or not otherwise. In making these observations, his Lordship relied upon the decision of the Supreme Court in Bipat Gope v. State of Bihar 1962 AWR 624, SC. That case was instituted on a police report and the proceeding before the Magistrate was governed by Section 207-A, Sub-section (6) of which enables the Magistrate to discharge an accused if he was of the opinion that the evidence and documents disclosed no grounds for committing the accused for trial. The Supreme Court noticed the words of Section 207-A(6) and Section 209 as not being the same and observed: The words of the two sections are not the same and it is possible to say that the force of the two sections is also not the same and that Section 209 gives a power to enter upon the merits of a case in a manner which Section 207-A does not warrant. Whether the change of the language is deliberate or due to the fact that different draftsmen drafted the two sections, the test for discharging the accused must, in a large way, be the same under both the sections and it is hardly necessary to decide the full ambit of Section 207-A and contrast it with that of Section 209. If there is any indication in the language, it is altogether on the side that the Magistrate must find a stronger case for discharging an accused u/s 207-A than u/s 209. But, whatever the meaning of the two expressions, neither of them invests the Magistrate with the jurisdiction to decide the case, as if the Sessions trial was before him. Referring to the case under consideration the Supreme Court observed: In this case, we are clear, on a reading of the reasons recorded by the Magistrate, that he did not stop to find out that there was evidence which, if believed, would establish, at least a prima facie case, but went on further to disbelieve that evidence by an elaborate and painstaking process of examination, in aid of which he brought to bear his own appraisal of inconsistencies, improbabilities etc. In short, he tried the whole case from one end to the other and established his point, as has been said already, in a fairly elaborate order.... In short, he tried the whole case from one end to the other and established his point, as has been said already, in a fairly elaborate order.... In our opinion, whatever the jurisdiction conferred by Sub-section (6) of Section 207-A, it does not entitle a Magistrate to try the case on his own and forestall the decision of the Court of Session and this is what the Magistrate, in fact, did here. 9. The Supreme Court had further occasion to consider the scope of the powers and jurisdiction of Magistrates Under Sections 207-A and 209. In K.P. Raghavan v. M.H. Abbas 1967 AWR 456 SC, a case u/s 207-A, the Magistrate discharged the accused on three grounds after assessing the evidence and the Supreme Court commented that another court could have reasonably taken a different view of the occurrence and upholding the order of the Sessions Judge in revision directing the Magistrate to commit the case for trial, the Supreme Court observed: There were eye-witnesses, who deposed in support of the incident which was the subject-matter bf the complaint. This evidence, if it au stood by itself, was very clear and was quite enough to prove the prosecution charge against the Appellants. 10. The next decision of the Supreme Court to which my attention has been drawn is Almohan Das and Others Vs. State of West Bengal, AIR 1970 SC 863 . The Supreme Court remarked: In terms Section 209 applies to cases which are instituted otherwise than on a police report. But the principle underlying that section applies to cases which are instituted on a police report. A Magistrate holding an enquiry is not intended to act merely as a recording machine. He is entitled to sift and weigh the materials on record, but only for seeing whether there is sufficient evidence for commitment and not whether there is sufficient evidence for conviction. If there is no prima facie evidence or the evidence is totally unworthy of credit, ft is his duty to discharge the accused; if there is some evidence on which a conviction may reasonably be based, he must commit the case. The Magistrate at that stage has no power to evaluate the evidence for satisfying himself of the guilt of the accused. The question before the Magistrate at that stage is whether there is some credibly evidence which would sustain a conviction. The Magistrate at that stage has no power to evaluate the evidence for satisfying himself of the guilt of the accused. The question before the Magistrate at that stage is whether there is some credibly evidence which would sustain a conviction. A later decision of the Supreme Court is to be found in Rajpal Singh and Others Vs. Jai Singh and Another, AIR 1970 SC 1015 . The previous decisions in the cases of Bipat Gope and Alamohan Das (supra) were considered in this case. The relevant observations of the Supreme Court are as follows: ...in each case 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. Where, however, much can be said on both the sides, ft would be for the Sessions Court and not for the Magistrate to decide which of the two conflicting versions will find acceptance at its hand.... If there is no prima facie evidence or the evidence is totally unworthy of credit it is his duty to discharge the accused. But, if there is some evidence on which a conviction may reasonably be based he must commit the case. But the Magistrate at that stage has no power to evaluate the evidence for satisfying himself of the guilt of the accused. The question before him at that stage would be whether there is some credible evidence which would sustain a conviction.... Though, as pointed out earlier the language of Section 209 differs from that in Section 207A, it is well settled that under neither of them has the Magistrate the jurisdiction to assess and evaluate the evidence before him for the purpose of seeing whether there is sufficient evidence for conviction. The reason obviously is that if he were to do that he would be trying the case himself instead of leaving it to be done by the Sessions Court, which alone has under the Code the jurisdiction to try it. 11. On an analysis of the above decisions, it is clear that the Committing Magistrate is not merely a Post Office or a recording machine or an automation. 11. On an analysis of the above decisions, it is clear that the Committing Magistrate is not merely a Post Office or a recording machine or an automation. He can certainly sift the evidence and consider whether it makes out a prima facie case if he is satisfied that the evidence is completely untrustworthy, he can discharge the accused. But where the evidence, if believed, is likely to result in conviction and is not totally unworthy of credit, he ought to commit the case for trial to the Sessions Court. He cannot, however, follow the elaborate process of evaluation of the evidence and appraising the inconsistencies, improbabilities etc. and then discharge the accused. 12. As regards the powers of the Sessions Judge in revision u/s 437 of the Code of Criminal Procedure, the section provides-that when the Sessions Judge considers in a case triable exclusively by the court of Session that an accused person has not been properly discharged by the Magistrate, the Sessions Judge may order him to be committed for trial by the Sessions Court. In other words, toe Sessions Judge has to apply his mind to the question whether the discharge of the accused recorded by the Magistrate is proper or improper. In a Full Bench case of the Bombay High Court Ramchandra Babaji Gore Vs. Emperor, AIR 1935 Bom 137 , Chief Justice Beaumont observed: Under Section 487, which applies in this case, all that the Sessions Judge has to do is to come to the conclusion that the order for discharge was improper. He may, as it seems to me, reach that conclusion not only on the grounds indicated in the judgment of Broomfield, J., in 1933 Bom. 158 (1), that is to say, that the order was perverse or manifestly unreasonable and inconsistent with an honest appreciation of the evidence in the case; but also on the ground that the Magistrate has however competently taken upon himself the discharge of a duty which under the Code is entrusted to the Sessions Court, that is to say, the duty of appreciation of evidence of doubtful credibility. On that ground, I think, the Sessions Judge clearly can set aside an order of discharge, but I am prepared to go further and to hold that in a proper case he may do so on the ground that he disagrees with the appreciation of evidence by the Magistrate. On that ground, I think, the Sessions Judge clearly can set aside an order of discharge, but I am prepared to go further and to hold that in a proper case he may do so on the ground that he disagrees with the appreciation of evidence by the Magistrate. 13. In Vishwanath Bhartiya Vs. Ram Naran Das Jagannath, AIR 1940 All 405 , the view taken was that the words "improperly discharged" appearing in Section 437 do not clearly mean perversely discharged and that what impropriety implies is that the order of discharge could not have been passed, if the Magistrate had taken a reasonable view of all the circumstances of the case. 14. It appears to me that in considering whether an order of discharge recorded by the Magistrate is improper within the meaning of Section 437, the Sessions Judge has to consider whether the Magistrate exceeded his powers u/s 207-A or Section 209, as the case may be and also whether a reasonable view of the evidence would establish a prima facie case for committal. 15. The present application has to be decided in the light of the law discussed above. 16. Ram Asrey, the complainant in this case, examined, in support of his allegations, besides himself, three witnesses, Babu Singh, Paras Ram and Brij Kishore, all of whom have corroborated the version of Ram Asrey. The learned Magistrate, without discussing the evidence of Paras Ram and Brij Kishore, has rejected their testimony remarking that it would be sufficient to observe that such witnesses are not difficult to procure and can easily be hired. He has come to the conclusion that the complaint of Ram Asre is "a pure concoction" for the following reasons: Babu Singh, according to Ram Asrey and Babu Singh himself, asserted that he had gone to the police station to lodge a report about the incident but his report was not written and he was arrested and sent to jail. The learned Magistrate disbelieved this aspect of the case on the ground that there is no sufficient reason whey Ram Asre should not have himself gone to lodge a report nor was there any reason why the report of Babu Singh was not taken down at the Police Station. The learned Magistrate disbelieved this aspect of the case on the ground that there is no sufficient reason whey Ram Asre should not have himself gone to lodge a report nor was there any reason why the report of Babu Singh was not taken down at the Police Station. It may be mentioned in this connection that the statement that Babu Singh had gone to the Police Station to lodge a report but the report was not taken down and he was arrested has not been challenged in the cross-examination. Since Babu Singh's report was not entertained at the police station, Ram Asrey made an application to the Superintendent of Police setting out his complaint arid this Superintendent ordered enquiry into the complaint. The actual date of the endorsement is 11-8-1967. Both the lower courts appear to have misread the date as 14th August, 1967. The learned Magistrate has proceeded on the assumption that the application was made by Ram Asre on the date of the endorsement of the Superintendent of Police, but there is no justification for that assumption. If the endorsement was made on 11th August, 1967, it is possible that Ram Asre made that application some days earlier. The learned Counsel for the Applicants urged that the failure on the part of Ram Asre to make a report immediately after the incident would be evidence of the complaint being an afterthought. But it would be for Ram Asre to explain on detailed examination when he made that application and why there was delay if at all there was. The learned Magistrate has also given importance to the fact that in the investigation that followed Ram Asre's application to the Superintendent of Police, the police submitted a Final Report. The fact that the Police investigation ended in a Final Report does not debar Ram Asre from proving his case. 17. The learned Magistrate has described the complaint as a "bogus one" and intended to be a counter-blast to the case filed against Ram Asrey and others on the ground that the complaint was filed by Ram Asre in court as late as 19th February, 1968, but the complainant has explained the delay: Ram, Asre was waiting for the result of the Police investigation. The learned Magistrate has also dwelt upon the improbabilities of the occurrence. The learned Magistrate has also dwelt upon the improbabilities of the occurrence. He has observed that it is impossible to believe that the seven Applicants pitted against a single individual, Ram Asre, could not inflict any injury on him or Babu Singh who appeared later and that Sahdeo, Viseswar and Maiyadin who Kad received injuries by the shot of Babu Singh would not have kept silent even though Sahdeo was armed with a gun. The weight to be applied to these improbabilities would depend upon a close assessment of the evidence of the eye-witnesses. As stated above, the testimony of Paras Ram and Brij Kishore, who are apparently independent witnesses, has been brushed aside lightly. The learned Magistrate has relied largely upon guess work and has failed to appreciate whether the evidence makes out a prima, facie case. A different view might be taken in a higher court. Thus, the leaned Magistrate has, in discharging the accused, not only acted in excess of his powers but has also not sifted the evidence iii its proper perspective. 18. The learned Sessions Judge has pointed out some of the improprieties in the assessment of the evidence and circumstances by the learned Magistrate and has come to the conclusion that the assessment of the evidence of the independent witnesses by the learned Magistrate was not proper and that the case of Ram Asre has prima facie some force. It was argued on behalf of the Applicants that the learned Sessions Judge was influenced by the fact that the case against Ram Asre and others at the instance of the Applicants is pending in the Sessions Court and held that this case also should be committed to the court of Sessions. It is true that the learned Sessions Judge has remarked that the evidence in the present Case is to be weighed and considered after full evidence is led in both the cases but that is not the only reason why he found that the present case was fit to be committed to the Court of Sessions. The learned Sessions Judge was in my view, justified in holding that the order of discharge was improper and in sitting it aside and directing him to commit the case to the court of Sessions. 19. In the view I take, the application deserves to be and is hereby rejected. The stay of further proceedings is vacated.