MAHARAJ SINGH Vs. MALKHAN

JUDGEMENT

(1.) This application raises an interesting question of the right of a Magistrate holding an enquiry under Ch. 18 Cr. P.C. to cancel a charge framed by him against an accused on the basis of documentary evidence furnished by him after the framing of the charge.

(2.) The material facts are that the applicant filed a complaint against the opposite parties for the offences of Section 395 I.P.C. etc. He produced evidence in support of the complaint and the Magistrate after examining the opposite parties framed a charge against them for the offence of Section 395 I.P.C. under Section 210 Cr. P.C. He then called upon them to furnish a list of witnesses to be examined in defence but they furnished no list. They, however, produced a number of documents which the Magistrate received, and on considering them he passed an order, purporting to be one under Section 213 (2), cancelling the charge framed against them and discharging them on the finding that there was no sufficient ground for committing them.

(3.) The Magistrate is required after framing a charge to call upon the accused to give a list of the persons to be examined in defence at the trial. He is given discretion to summon and examine any of the witnesses named in the list, if any given to him; vide Section 212. If the accused does not give a list or if he has given a list and the Magistrate has examined such of the witnesses included in it as he desires to examine, he is empowered by Sub-section (1), Section 213 to make an order committing the accused for trial. Sub-section (2) lays down that if after hearing the witnesses for the defence he is satisfied that there are no sufficient grounds for committing the accused he may cancel the charge and discharge the accused. Here the opposite parties did not give a list of witnesses to be examined in defence at the trial and the Magistrate did not examine any witnesses in defence. He cancelled the charge on being satisfied that there were no sufficient grounds for committing them, the satisfaction, however, was derived not from statements of witnesses examined in defence but from perusal of the documents and Section 213 (2) did not permit this at all. The condition precedent for an order under Section 213 (2) is that witnesses for the defence should have been heard; if no witnesses for the defence were heard such an order could not be passed at all.