STATE Vs. SANTAPPA ALVA S/O RAMAYYA ALVA

JUDGEMENT

(1.) This is a reference Under Section 438 of -the Code of Criminal Procedure made by the Sessions Judge, South Kanara, Mangalore. It pertains to the order of commitment made by the Sub Magistrate (Judicial) at Puttur, in P. R. C. No. 3/61 on the file of the said Sub Magistrate. By the said order of commitment the Sub Magistrate had ordered the respondent Santappa Alva to take his trial before the Court of Sessions for an offence punishable Under Section 302 of the Indian Penal Code. When the case came up for trial before the learned Sessions Judge, an objection seems to have been taken by the learned Counsel for the Accused, in regard to ths legality of the commitment. It would appear that before the Committing Magistrate, the prosecution had stated that two witnesses, namely Laxmi and Koragapp-.i would be examined for the prosecution. On 4-3-1961 both Laxmi and Koragappa were present in the court of the Committing Magistrate. Koragappa was stated to be an eye-witness, i.e.. a witness to the actual commission of the offence alleged- Laxmi was exerted by the Committing Magistrate from about 3 p. m. till about 4.45 p.m. on 4-3-1.961- It would appear, that on account of want of Use the case had to be adjourned; it was accordingly adjourned to 16-3-196.1, the Assistant Public Prosecutor undertaking "to produce on the adjourned date, the witness Keragappa. Tne accused was defended by an Advocate and Laxmi had been cross-examined on 4-3-1961. "vTiiein the case came up for hearing before the Committing Magistrate on .16-3-1961, the Assistant Public Prosecutor filed a memo to the effect that the prosecution did not propose to examine any more witnesses in that Court. Thereupon, the case was adjourned to 21-3-1961, for awaiting receipt of the copy of Serologist's report. From that date it was again adjourned to 24-3-1961, on which date the order of commitment was made and a charge was framed and explained to the accused person. It should be stated that neither on .16-3-1961, nor on 21-3-6.1, had the accused's Counsel raised any objection in regard to the non-examination of Koragappa; no submission was made on behalf of the accused, in regard to the need or the necessity for the examination of the said Koragappa.

(2.) In making the present reference, the learned Sessions Judge seems to have been very much influenced by the fact that Koragappa was present before the Committing Magistrate on 4-G-1931' and that he was not produced for examination on the adjourned date, viz., on 16-3-1961. The learned Sessions Judge seems to be of the opinion that Koragappa having been alleged to be a witness to the actual commission of the offence, ought to have been examined by the Committing Magistrate before the learned Magistrate proceeded to take the evidence of the other witness i.e. Laxmi. It would no doubt have been desirable for the committing Magistrate to have first examined Koragappa who was stated to be an eye-witness to the actual commission of the offence; but, we are hot satisfied that in examining Laxmi in the first instance, the committing Magistrate committed an illegality in procedure.

(3.) On 16-3-1961, Koragappa was not produced by the prosecution for examination as a witness. On the other hand, the Assistant Public Prosecutor submitted to Court through his memo that the prosecution did not propose to examine any further witness. We cannot agree with the view that merely because of the fact that Koragappa had been produced on 4-3-1961, was not open to the prosecution on the subsequent date of hearing, namely on 16-3-1961, to dispense with the examination of Koragappa. It is no doubt true that under the latter part of Sub-section (4) of Section 207-A of the Code of Criminal Procedure it was open to the Magistrate to take the evidence of either Koragappa or any other witness, if the Magistrate was of the opinion that is. was necessary in the interests of justice to take their evidence. But, in the present case, there is absolutely nothing to show that the Magistrate was of such an opinion. Further, as already stated above, the learned Advocate for the accused also 'did not make any submission to the Magistrate to the. effect that the evidence of either Koragapi or of any other witness was necessary in the interests of justice.