STATE Vs. LAXMAN BHIMAPPA TYAPI

JUDGEMENT

(1.) This is a reference made by the Additional Sessions Judge, Belgaum under Section 438 of the Code of Criminal Procedure for quashing the order passed by the Judicial Magistrals, First Class, Ramdrug in C. C. No. 331 of 1957. By the afore-said order the learned Magistrate committed the four respondents and nine others to take their trial on charges under Sections 120-B, 147, 148, 149. 302. 323, 324 and 326 of the Indian Penal Coda and 19(e) and (f) of the Indian Arms Act in the Court of the Sessions Judge at Belgaum. The learned Additional Sessions Judge who perused the records and heard the arguments addressed to him on behalf of the respondents, is of the opinion that the order passed by the learned Magistrate committing the accused in C.C. No. 331 of 1957 to take their trial in the Court of Session without examining all the witnesses who had been cited in the charge-sheet as wit-nesses for the incident is illegal and therefore the order should be quashed. The learned Additional Sessions Judge is of the opinion that it was obligatory on the part of the prosecution to produce and examine all such witnesses in the committal Court under Sub-section (4) of Section 207-A of the Code of Criminal Procedure. Reliance is placed on some observations made by this Court in Pawalappa v. State of Mysore, 35 Mys. LJ 64 : ((S) AIR 1957 Mys. 61J and Krishna v. State of Mysore, (S) AIR 1957 Mys. 5 in support of the said view. Having come to the conclusion that the committal order is bad, the learned Additional Sessions Judge has made his reference to this Court for quashing the same and sending back the records to e learned Magistrate directing him to examine all the witnesses cited in the case as witnesses to the actual commission of the offence and then proceed with it according to law.

(2.) This reference involves an important question of law regarding the interpretation of Sub-section . (4) of Section 207A of the Code of Criminal Procedure. Section 207-A was inserted by Section 29 of the Code of Criminal Procedure Amendment Act (Act XXVJ of 1955) with a view to avoid unnecessary delay in proceedings before the committal Court and speed up the trial of cases instituted on police report tri-able exclusively by a Court of Session. Under Sub-section (1) a Magistrate receiving a police report should fix a date for holding an enquiry within fourteen days from its receipt. Under Sub-section (2) the Magistrate is bound to issue process for the attendance of any witness or, the production of any documents applied for by the prosecution before the date fixed for holding the enquiry. Under Sub-section (3) the Magistrate should satisfy himself that all the documents referred to under Section 173 Cr. P. C. have been furnished to the accused before commencing the enquiry. Sub-section (4) of Section 207-A of the Code of Criminal Procedure reads as follows :

(3.) Some of the High Courts hold the view that the Magistrate has got a right under the latter part of Section 207-A (4) to examine the witnesses other man the eye witnesses for the incident, if he so de-sires, before ho proceeds to consider the documents referred to in Section 173 and that he has no right to examine the witnesses for the incident suo motu, while some other High Courts have held that the right of the Magistrate to examine witnesses for the incident, if he feels that it is necessary in the interests of justice is recognised in the latter part of Sub-section (4) of Section 207-A of the Code of Criminal Procedure. Some of the High Courts and the subordinate Courts appear to hold the view that . . . .this High Court has expressed its clear opinion to the effect that it is obligatory for the prosecution to examine all the eye witnesses for the incident in 35 Mys LT 64 : ((S) AIR 1957 Mys 61 & in (S) AIR 1957 Mys 5. We will presently show that the construction put on the abovesaid decisions of this High Court by the several learned Judges and the subordinate Courts in this State is not correct.