VELAYUDHAN PILLAI THANKAPPAN NAIR Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioner before us was put up before the Sub-Magistrate of Attingal for an alleged offence under section 314, I. P. C. There were no witnesses to the actual commission of the offence and the prosecution rested their case entirely on circumstantial evidence. No witnesses were, therefore, examined and the learned magistrate after following the procedure laid down under Section 20/-A, Cr. P. C. came to the conclusion that the accused should be committed for trial and passed an order of commitment, The petitioner has come up to this court to quash the order of commitment.

(2.) THE first ground urged is that the commitment without taking evidence is illegal or at any rate the Magistrate has not exercised his discretion properly in not examining any witnesses. Under clause (4) to Section 207-A, Cr. P. C. , the examination of witnesses is made obligatory only in cases where there are witnesses to the actual commission of the offence. In such a case the prosecution may produce witnesses and the Magistrate is then bound to examine them. Clause (4) does not state that in a case depending upon circumstantial evidence the prosecution is bound to produce and examine any witnesses at the stage of the preliminary enquiry. The question depends solely on the discretionary power conferred on the Magistrate under that clause to decide whether it is necessary for him in the Interests of justice to examine any of the witnesses, If the Magistrate in the exercise of his discretion decides that no witness need be examined there is no legal impediment in his committing the case and the documents referred to in section 173, Cr. P. C.

(3.) THIS question whether in a case depending solely on circumstantial evidence a committal order could be passed by a Magistrate without examining any of the witnesses of the prosecution has now been settled by the decision of the Full bench of this Court In State of Kerala v. Varghese Vaidyan, 1960 Ker LT 607: AIR 1961 Kerala lr following the decision of the Supreme Court in Hanomantha Rao v. State of A. P. , (S) AIR 1957 SC 927. In a more recent decision in Shri Ram Daya Ram v. The State of Maharashtra, AIR 1961 SC 674, the question again came up for consideration and it was held: