ORDER
1. The respondent is accused No. 13 in [CASE NUMBER] on the file of the IVth Additional District Munsif Magistrate, Chittoor. He filed [CASE NUMBER] for discharging him under [SECTION] of the [ACT], (for short, `the Code') The learned Magistrate by his order dated 15-10-1991, allowed the application, discharging the respondent. The said order is assailed in this case.
2. The brief facts, which are necessary for the limited purpose of considering the validity of the order are stated hereunder :
. It is common knowledge that countless offerings by pilgrims comprising of gold, jewellery and coins that pour every day into the Hundi of Lord [ENTITY] are kept in the temple at Tirumala. The place of the counting of the Hundi collections is called [ENTITY]. The accused in the case are some of the staff of the [ENTITY] kept on duty to perform the onerous functions of counting the huge collections.' It is alleged that A-1 to A-13 and some others entered into a conspiracy to commit theft and misappropriate the gold and other valuables from the Hundi offerings. A-7 and A-8, who are the Attenders, with the connivance of A-1 secreted some gold jewellery in the bags containing only coins, on 9-3-1990 and 10-3-1990. About 300 grams of gold ornaments were detected when, on suspicion, the bags containing coins were checked. A-13, the respondent herein, worked as appraiser in the treasury of [ENTITY] at Tirupathi. He used to help the other accused is receiving, converting and disposing of the stolen property. Thereafter they distributed the booty among themselves. On these allegations A-1 to A-13 were charged by C.B. C.I.D. under [SECTION] and [SECTION] of [ACT] The learned Magistrate, not only considered the charge sheet, and the documents sent by the Police under [SECTION] of the Code, but also took into consideration Exs. C-1 to C-7, which were summoned by him, and held that there was no material against A-13, to frame a charge.
3. It is now contended, forcefully, by the learned Public Prosecutor that the approach of the learned Magistrate is contrary to legal requirements as contemplated under [SECTION] and [SECTION] of the Code and that the Magistrate is not entitled to appreciate as to the veracity of the contents of the documents before him. It was also contended that the Magistrate is not empowered to summon the documents i.e., Exs. C-1 to C-7 and consider the same under [SECTION] of the Code. On the other hand, the counsel for the respondent argued that the duty of the Magistrate is not only to examine the documents before him but also to summon the documents, if necessary to make an enquiry whether there was any truth in the allegations, before framing the charge and in doing so he is empowered to weigh and sift the material on record and that the High Court in its revisional jurisdiction will be slow to interfere with the order passed containing cogent reasons.
4. The Supreme Court, in State Bihar v. [ENTITY], , considering the parameters of the enquiry by the Court under [SECTION] of the Code, observed as follows (Para 4) :
" Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment, which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under [SECTION] or [SECTION] of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law goverining the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, than there will be no sufficient ground for proceeding with the trial. there was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction, "
5. The provisions of [SECTION] and [SECTION] of the Code relating to the trial of warrant cases, with which we are concerned in the instant case, are similar to [SECTION] and [SECTION] of the Code, which relate to the trial of the cases triable exclusively in Sessions Court. The law enumerated above, therefore, applies with equal force to the nature of enquiry under [SECTION] and [SECTION] of the Code. The decision in Union of India v. [ENTITY], (1979) 3 SCC : (1979 Cri LJ 154), reiterated what has been stated in [ENTITY] case, . In [PRECEDENT], , [ENTITY], J, approving the principle laid down in the above two decision, observed that " In fact, [SECTION] itself contains enough guidelines as to the scope of enquiry for the purpose of discharging an accused. It provides that "the Judge shall discharge when he considers that there is no sufficient ground for proceeding against the accused". The `ground' in the context is not a ground for conviction, but a ground for putting the accused on trial. It is in the trial, the guilt or the innocence of the accused will be determined and not at the time of framing of charge. The Court, therefore, need not undertake an elaborate enquiry in sifting and weighing the material. Nor is it necessary to delve deep into various aspects. All that the Court has to consider is whether the evidentiary material on record if generally accepted, would reasonably connect the accused with the crime. No more need be enquired into."
6. The decision cited by the respondent's counsel in [PRECEDENT], , does into rule differently. Approving the principle laid down in [ENTITY] case, and [ENTITY], , it has been observed that ([CASE NUMBER]) " Can he marshall the evidence found on the record of the case and in the documents placed before him as he would do on the conclusion of the evidence adduced by the prosecution after the charge is framed ? It is obvious that since he is at the stage of deciding whether or not there exists sufficient grounds for framing the charge, his enquiry must necessarily be limited to deciding if the facts emerging from the record and documents constitute the offence with which the accused is charged. At that stage he may sift the evidence for that limited purpose but he is not required to marshal the evidence with a view to separating the grain from the chaff. All that he is called upon to consider is whether there is sufficient ground to frame the charge and for this limited purpose he must weigh the material on record as well as the documents relied on by the prosecution. "
7. The function of the Magistrate therefore under [SECTION] of the Code is not to marshall the evidence and judge the truth, veracity and effect of such evidence which the prosecution proposes to adduce and what weight to be attached to the probable defence of the accused. If there is strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence, it has to pass an order under [SECTION] of the Code.
8. In the context of the law laid down by the Supreme Court it has to be considered whether the learned Magistrate was right in discharging A-13, the respondent herein. The learned Magistrate summoned Exs. C-1 to C-7 to ascertain the procedure that is adopted in [ENTITY]. These are not the documents which have been sent by the police under [SECTION] of the Code. Exs. C-1 to C-4 are the challans dated 9-3-1990 which disclosed the items that were entered into the challan register. Ex. C-6 is another challan which disclosed that gold was discovered not only on the date of occurrence but also on previous and subsequent occasions. The Magistrate considered Exs. C-1 to C-7 along with the 161 statements of L.W.s 1 and 2, 11 and 12 and other documents forwarded under [SECTION] of the Code and in so doing he examined the truth or otherwise of the evidence of the witnesses. The evidence of L.Ws. 11 and 12 was discussed thoroughly observing, "L.Ws. 11 and 12 state that they know about the plan and process and then what made them not to report the matter to the higher authorities before ? Why they kept quiet until the offence came to light and why did not the Vigilance Officers and Guards who are on duty on the date of offence, not shown as accused. All these doubts are unanswerable and create doubts and disclose mischief played by L.W. 2." Again the Magistrate, while discussing the procedure at [ENTITY], observed that if by mistake the gold and other valuables might have been found in [ENTITY] at Tirupathi, they would be separated and accounted in challan and since the bags were sealed and kept in tight security there will not be any possibility for theft. The ornaments are separated from the coin bags though, some, by mistake might be found in them. He again observed that there was no question of theft as the bags were in the custody of the [ENTITY]. Again, after extracting [SECTION] and [SECTION] of [ACT] it was observed that no specific overt act has been attributed to presume that he was directly or indirectly responsible for the said offences. Ultimately he concluded that there was no material against A-13 "as no overt act is attributed against the petitioner". It is therefore seen that the learned Magistrate has not only considered the allegations as they are but he has marshelled and sifted the evidence to judge the truth, veracity and effect of the evidence, which is not permissible at that stage. He has also enumerated various "points" for discharging the accused. On a reading of the points it is plain that he has weighed the evidence of witnesses, not to find whether grounds exist for proceeding against the petitioner and other accused (sic) satisfy himself about their guilt. He found fault with L.W. 2, Vigilance Guard Officer that he and other guard officers watching the process at [ENTITY] did not perform their duties properly and presumed that they should be held responsible for the offence. He also found that it was impossible for any one to commit the offence in the circumstances of the case and that L. Ws. 11 and 12 are also responsible for the offence, if any. He also observed that A-13 was only an Appraiser and if he finds any articles by mistake in [ENTITY] they would be deposited in the bank. Whether the jewellery found in the bags was by mistake or by design in pursuance of a conspiracy, is the gravamen of the prosecution's case. The Magistrate cannot brush aside the basis of the incident as a mistake. The reasoning of the learned Magistrate is clearly erroneous. He has forgotten that conspiracy is the main offence with which the petitioner and other accused are charged. Under [SECTION] [ACT], no overt act need be attributed in the chargesheet. Whether the accused are liable for offence of conspiracy and misappropriation and other offences, has to be decided during the trial. The approach of the Magistrate is contrary to law laid down by the Supreme Court and the order of discharge passed by him is liable to be set aside.
9. The next contention of the learned Public Prosecutor is whether the Court was within its jurisdiction in summoning Exs. C-1 to C-7 and examining the same to exercise its power under [SECTION] of the Code. This question need not be decided in the view I have taken above. From a reading of the order I find that there is sufficient material on record to proceed against the respondent. It is not a case where there are no grounds to believe, `prima facie' that the respondent is responsible for the offences.
10. I, therefore, set aside the order of discharge and direct the Court below that appropriate charge or charges will be framed against the respondent and the trial will proceed further in accordance with law. The Crl. Revision Case is allowed.
11. Revision allowed.