D P MAZUMDAR Vs. HARMINDER

JUDGEMENT

(1.) This application under section 482 of the Code of Criminal Procedure, 1973 (hereinafter to be referred to as the Code) filed on behalf of the accused petitioner is directed against order No. 11 dated 8-12.80, in Sessions Case No. 111 of 1980 in the Court of Assistant Sessions Judge, Asansol. By the order impugned the learned, Assistant Sessions Judge has ordered issue of summons on the witnesses of the complainant-opposite party who were not examined by him before the committing Magistrate.

(2.) A complaint was filed alleging commission of an offence triable exclusively by a Court of Sessions namely, an offence under section 395 Indian Penal Code along with a list of 11 witnesses in the Court of S.D.].M., Asansol. On 3-4-80 four more witnesses were examined and on 7-4-80, 4 more witnesses were examined. There is .nothing in the order-sheet of the learned Magistrate that he postponed issue of process against the accused pending enquiry by himself under section 202 (1) of the Code. On 10-4-80 the learned Magistrate issued process against the present petitioner and other accused obviously under section 204 of the Code. The accused surrendered in court and on their prayer they were released on bail on 11-4-80. Thereafter, without examining the remaining three witnesses and recording their deposition, the learned Magistrate committed the accused in the Court of Session under section 209 of the Code. The Sessions Judge transferred the case to the court of Assistant Sessions Judge who after perusing the records and documents framed charge, recorded the plea of the accused under section 228 of the Code and fixed dates of evidence under section 230 of the Code. Thereafter the learned Assistant Sessions Judge, on the prayer of the prosecution, by the impugned order, issued summons against witnesses, who were not examined by the complainant before the learned Magistrate and whose deposition have not been supplied to the accused under section 208(1) of the Code. The learned Court passed the impugned order overruling objection of the petitioner.

(3.) On behalf of the petitioner not only the order impugned but also all the proceedings derived from the order of commitment are being assailed as illegal. Relying on the case of Govinda Ghosh v. Subola Ghosh1, Special Bench decision of Dipchand Mundra v. Pro,ash Kumar Chowdhury2, Paranjothi and other v. State3 the case of Smt. Anisa and another v. Banne Khan4, and the case of Govinda Raja Pillai v. Thgngavelu Pillai and others5 Mr. Dilip Kumar Dutt the learned advocate for the petitioner argues vehemently that the provisions of section 202 of the Code including the proviso have been held to be mandatory and the learned Magistrate having violated the aforesaid mandatory provision, his order of commitment itself is illegal and void. It is submitted that the commitment order being illegal the proceedings in the Sessions trial so far taken on the order of commitment are liable to be set aside. Mr. Dutt also places reliance on the case of Kamal Krishna Dey v. State6, Baburam & Anr. v. State of U.P.7 and the case of Shyamkanto v. State of Maharashtra8 to fortify his contention. Mr. Dutt further submits that under section 208 sub-section (1) of the Code the accused petitioner had as inviolable right to have statements of all witnesses to be examined by the complainant for the purpose of preparing his defence. He emphasizes that the order of commitment was not made on the basis of F.I.R. and chargesheet submitted by the police and the accused petitioner has not been served with statement of witnesses ordinarily recorded under section 161 Criminal Procedure Code. Mr. Dutt argues that the petitioner is handicapped in the defence to be undertaken and the order of commitment being illegal the such order and fur they proceedings in the Sessions trial passed on the order of commitment are liable to be set aside. Mr. Dutt, however, does not argue that the statements of witnesses recorded by the learned Magistrate did not make out a prima facie case.