STATE OF U P Vs. SATYAVIR

JUDGEMENT

(1.) A commitment can be quashed on a question of law and law only. No question of law is involved in the commitment of the applicant to stand trial for an offence under Section 302, I.P.C. There is no direct evidence and, therefore, there are no eye-witnesses, i.e. witnesses to the actual commission of the offence and Section 207A(4) is inapplicable. When there are no eye-witnesses there cannot possibly arise any question of the Magistrate's failure to examine them. Even when there are eye-witnesses the Magistrate is not bound to record the evidence of all of them; he is only required to record the evidence of only such of them as are produced by the prosecution. So it is for the prosecution to decide how many of the eye-witnesses should be examined; the Magistrate cannot compel to examine any particular witness or refuse to examine any eye-witness. The Magistrate has the power of examining other witnesses, but is not bound to examine them and no Magistrate failing to exercise that power can ever be said to commit an illegality. The prosecution did not produce any eye-witness before the Magistrate and the Magistrate did not commit any illegality or irregularity by not examining any eye-witness. Witnesses of circumstantial evidence are not witnesses of the actual occurrence and are not required to be examined by the Magistrate; he may, if he wishes, examine them but is not bound to do so and his failure to examine any of them is no infringement of law. I was referred to the State v. Ramratan Bhudhan, 1957 Cri LJ 64: ((S) AIR 1957 Madh-B 7), in which Khan J. observed that the word "may" in Sub-section (4) has the force of "shall"; I respectfully disagree. The prosecution is never bound to examine all witnesses to the actual commission of the offence and once this is conceded the word "shall", cannot be substituted for the word 'may' in the first part of the Sub-section. The language of the Sub-section is quite inconsistent with any idea of compulsion on the prosecution to examine any witness. There cannot be any compulsion unless the act to be done is specified exactly; unless it is laid down that all the eye-witnesses shall be examined or unless the number of eye-witnesses to be examined is prescribed, it cannot be said that the prosecution is bound to examine eye-witnesses. If all the eye-witnesses are not required to be examined some minimum number must be prescribed and in the absence of any prescribed minimum number "may" means the absence of compulsion. The word "may" in the last part of the Sub-section may have the force of "shall" but it does not follow that the word occurring in the first part has the same force. It was also observed by Khan J. that some evidence must be recorded by the Magistrate in every case and reliance for this proposition was placed on the absence of the words like "if any" in the beginning of Sub-section (6). With great respect I venture to think that the addition of the word "if any" would render the opening words of the subsection meaningless. The evidence referred to in Sub-section (4) is the evidence that is actually recorded by the Magistrate, and, therefore, there does not arise the question of adding the words "if any," In State v. Govindan Thampi, Bhaskaran Thampi, 1957 Cri LJ 245: ((S) AIR 1957 Trav-C 29), a Bench of the Travancore-Cochin High Court was of the same view as Khan J. and observed that the prosecution has no discretion to exercise in the matter of examination of eye-witnesses. I, however, agree with the observations of the learned Judges that "witnesses to the actual commission of the offence" do not include witnesses who give circumstantial evidence and that the prosecution has discretion not to examine any of them I respectfully agree with the. observation of Padmanabhia and Hombe Gowda JJ., in Krishna v. State of Mysore, 1957 Cri LJ 76, ((S) AIR 1957 Mys 5) to the effect that the non-examination of witnesses who are not eye-witnesses does not vitiate the order of commitment, that the Magistrate is not bound to examine a witness who is not an eye-witness, that the object of enacting Section 207A was to simplify the procedure and secure expeditious termination of the proceedings and that the words "such evidence" appearing in Sub-section (7) mean the evidence contemplated by Sub-section (4).

(2.) There is nothing in Sub-section (6) of Section 207A to suggest that the Magistrate must record some evidence and that commitment of the accused without recording any evidence is illegal. The sub-section is to the effect that

(3.) The reference is rejected.