SANTI JIBAN BOSE Vs. BROJA NATH MUNSHI

JUDGEMENT

(1.) The question that arises for consideration in this Rule relates to the procedure that the Magistrate is required to follow when in the midst of trial of a warrant case he decides to commit the accused to the Court of Session.

(2.) The Petitioner and two others were being prosecuted before a learned Magistrate of Raiganj upon allegations which prima facie made out charges of offences under Sections 477 and 420 of the Indian Penal Code. The proceedings originated in a complaint and they were transferred to the Magistrate who after several intermediate dates of hearing examined on Dec. 13, 1954, three witnesses for the prosecution. Thereafter three other witnesses were examined and the learned Magistrate fixed Jan. 17, 1955, as the date for hearing arguments as respects the charges to be adopted in the case. Arguments were in fact addressed to the Magistrate on Jan. 19, 1955, who adjourned the case for orders till Jan. 24. On this last mentioned date the Magistrate made up his mind that the offences which the Petitioner and his co-accused appeared to have committed were offences triable by the Court of Session and in that view he decided to commit the Petitioners and his co-accused to the Court of Session. As soon as this decision was reached and communicated to the accused persons, the Petitioner prayed to the learned Magistrate for opportunity to cross-examine the prosecution witnesses. The Magistrate considered the prayer but ultimately refused it in the view that he had no power to allow cross-examination at the stage reached in the proceedings; in other words, the view which the learned Magistrate took was that after having once made up his mind to commit the Petitioner and the co-accused to the Court of Session there was no provision in the law under which he could permit cross-examination of the prosecution witnesses. The prayer for cross-examination was therefore refused. Thereafter the Petitioner applied to this Court and obtained the present Rule.

(3.) It seems that the learned Magistrate was not apprised of the provisions of Sec. 347 of the Code of Criminal Procedure. That section is in these words: