G.N. MITTAL Vs. STATE AND OTHERS

JUDGEMENT

(1.) G .N. Mittal, one of the three persons committed to the Court of Sessions to stand trial Under Sections 368 and 377 of IPC has come up in revision before this Court for quashing the order of commitment after failing to get recommendation to that effect from the Sessions Judge, Bijnor.

(2.) I have heard the applicant's counsel and the Assistant Government Advocate. I have also perused the order dated 12 12 -1963 of the Sessions judge , Bijnor. It appears that the only point raised before the Sessions Judge Bijnor was that the order of commitment stood vitiated because of the failure of the Magistrate to record any evidence whatsoever. The argument then raised was that the Magistrate was not competent to pass an order of commitment only on the basis of the statements recorded Under Sections 161 and 164 of the Code of Criminal Procedure. Relying on the case of Shri Ram, Daya Ram and Ors. v. State of Maharashtra (1961 AWR 202 SC) the Sessions Judge, did not accept that contention. I mid that the application in revision before me apart from raising that question raised one other important question, vide allegations in paras 12 and 13 of the application. It is said in those paras of the application that even though the Magistrate had earlier agreed on 13 -8 -l963 to examine witnesses and accordingly required the applicant to give the names of witnesses for whose cross examination he required certain papers, the Magistrate suddenly passed an order of commitment on 3 -9 -1963 without even affording a chance to the accused in the case to be heard. The applicant's counsel has taken me through the order sheets beginning from 13 -8 -1963 to 24 -8 -1963. The last order sheet dated 24 -8 -1963 shows that the case was to be taken up on 27 -8 -1963. There is nothing on the record to show as to what actually happened on 27 -8 -1963, or how the order of commitment came to be passed on 3 -9 -1963. It is clearly laid down in Sub -section (7) of Section 207 -A of the Code of Criminal Procedure that after the evidence as envisaged by Sub -section (4) has been taken and the documents referred to in Sub -section (6) have been considered and after an examination, if any, of the accused has been made, the prosecution and the accused shall be given an opportunity of being heard before the Magistrate passes an order of commitment, in cases in which he is of the opinion that the accused should be committed for trial. It is thus obvious that whether or not the Magistrate thought fit to examine any witness before passing an order of commitment, it was obligatory on him to afford a chance to the prosecution and the accused of being heard before passing an order of commitment. This the Magistrate appears to have failed to do in the present case. At any rate, the learned Counsel appearing for the State has not been able to show me any thing from the record of the case from which it may be possible to infer that the Magistrate gave an opportunity to the prosecution and the accused to be heard before passing the order of commitment which is sought to be quashed. I, accordingly, conclude that the application succeeds.