M PAVALAPPA Vs. STATE OF MYSORE

JUDGEMENT

(1.) In this petitition the accused challenges the legality of his commitment under Sec. 207-A of the Code of Criminal Procedure for trial by the Court of Session for an affence under Sec. 333 I. P. C. The ground urged is that such a commitment without taking the evidence of persons alleged to be witnesses to the actual commission of the offence is contrary to the provisions of Sec. 207-A (4). It is riot disputed by the prosecution that there are such witnesses. It is seen that the prosecuting Inspector submitted to the Court that he did not intend to examine any eye-witnesses in the Committal Court, that thereupon the accused filed an application that persons cited as eye-witnesses may be summoned and examined and that the Magistrate refused the request. The accused took up the order of the learned Magistrate refusing to summon the eye witnesses in revision to this Court in Cr. E. P. 83 of 1956 and this Court dismissed that petition on the ground that it was not necessary to express any opinion at that stage about the correctness of the course adopted by the learned Magistrate. Thereafter the learned Magistrate looked into the F. I. R. and other documents furnished by the prosecution and made the committal order which is now challenged.

(2.) The learned Magistrate in rejecting the accused's application for calling the eye witnesses took the view that if the prosecution did not produce the witnesses he could not compel them to do so. It is contended by the learned Advocate for the accused that in an inquiry into cases triable by the Court of Session or High Court it is obligatory for the Magistrate under the above provision i.e., Sec. 207-A, to examine eye witnesses before he arrives at a conclusion whether the accused is to be discharged, tried before himself or some other Magistrate or committed for trial, in contrast to the procedure prescribed for the trial of warrant cases in regard to which under Sec. 251-A it is not necessary to examine any witnesses before a charge is framed. The learned Advocate has relied upon certain observations in the order of this Court in Krishna and Muniswamy v. State of Mysore, I.L.R. 1956 Mys. 255 (258-259). which read as follows :

(3.) Those observations however have to be read in the context of that case. No eye-witnesses were cited for the prosecution in that case. The accused contended that nevertheless it was obligatory for the Committing Magistrate to record evidence before he committed the accused. This Court contrasted Section 207-A and 251-A in considering that question and indicated that the examination of eye-witnesses was contemplated under Section 207-A while it was not contemplated under Sec. 251-A. There was no occasion to express any opinion on the point that has arisen for consideration now.