Rex v Dad (Cr. Rev. Case No. 35/1936) [1936] EACA 134 (1 January 1936)

# CRIMINAL REVISION

### Before SIR JOSEPH SHERIDAN, C. J., and WEBB, J.

## REX, Complainant

#### v.

# MAULA DAD, Accused

## Cr. Rev. Case No. 35/1936

## Criminal Procedure—Committal proceedings—Function of Magistrate -Right to weigh evidence.

The facts appear sufficiently from the judgment.

Held (4-6-36).—That a magistrate in committal proceedings is not bound to commit for trial simply because there is evidence on the one side which, if<br>believed, would support a conviction; he is entitled to weigh the evidence; if he is of opinion that the effect of the evidence is such that it ought not reasonably to satisfy the trial Court of the guilt of the accused, if he were committed, he should dismiss the charge. (Fattu v. Fattu (26 All. 564) followed.)

Modera for the accused.—The power of the Court to alter the Magistrate's order is discretionary, Cr. Pro. Code, sec. 349 (1) (b), compare Indian Cr. Pro. Code, 1898, sec. 439. In R. v. Hardeo (1 All. 139) it was said by two of the judges that an order of acquittal should only be altered in revision because of some error of law but not on a question of fact. A committing magistrate is entitled to weigh the evidence; Fattu v. Fattu (26 All. 564) and see also 5 All. 161, 15 Madras 39, 21 All. 265. There was insufficient reliable evidence of negligence, still less of such negligence as is criminal: $R$ . $\nu$ . Stringer (102 L. J. K. B. 206).

Wallace, Crown Counsel, for the Crown.-It is admitted that in committal proceedings, the magistrate is entitled to weigh the evidence. If he comes to the conclusion that the trial Court would not convict it would be a waste of public time for him to commit the accused for trial.

JUDGMENT.—An accident, which resulted in the death of Mr. Durham, took place on 15-7-1935. An inquest was held by the R. M. on 20-8-1935 and resulted in a finding that his death was accidental. Subsequently, in March, 1936, the accused was brought before the Magistrate's Court for committal on a charge of manslaughter; the case for the prosecution with the exception of one witness, was heard by Mr. Bailward; it was then adjourned and concluded by Mr. Williams, who, on the 23rd of April, made an order refusing to commit the accused for trial on the ground that there was insufficient reliable evidence of an omission amounting to culpable negligence.

The case now comes before this Court on revision to consider whether that order should not be set aside.

It is to be regretted that, whatever may have been the cause, the proceedings throughout have been so protracted, and we would further observe that, when it became possible to resume the committal proceedings, the Crown should have applied that they be concluded before the same Magistrate who had commenced the hearing.

There was some evidence that the accident was due to a sudden swerve by the deceased, who was cycling in front of the motor car driven by the accused. On the other hand there was evidence that the deceased was riding near his left hand side of the road and that he did not swerve in front of the car; this depended mainly, if not entirely, on the evidence of two natives, who, however, did not come forward until about four months after the event. There was also evidence of a statement said to have been made by the accused on the day after the accident, but Mr. Bailward, who heard the witness to this statement, was obviously but little impressed with his reliability.

It is conceded, and there is ample authority for the proposition, that a Magistrate in committal proceedings is not bound to commit for trial simply because there is evidence on the one side which, if believed, would support a conviction; he is entitled to weigh the evidence, but, at the same time, he is not entitled to usurp the functions of the Court of trial; see Fattu v. Fattu (26 All. 564). As was said in that case, "If he arrives at the conclusion, either at the close of the case for the prosecution or after hearing the accused's witnesses, that it" (i.e. the evidence for the prosecution) "is not true, he can give effect to his opinion by discharging the accused .... If it is a matter of weighing probabilities, he would be well advised in leaving the case to the Court which alone is empowered to try it." In our view the guiding principle is that if the Magistrate is of opinion that the effect of the evidence is such that it ought not reasonably to satisfy the Court of the guilt of the accused, if he were committed, he should dismiss the charge.

Having regard to all the circumstances of this case we are of opinion that it is not one in which this Court should interfere with the decision of the Magistrate.