AJIT SINGH Vs. STATE

JUDGEMENT

(1.) This is a revision by the petitioner Ajit Singh requesting that the order of the Sub-Divisional Magistrate, Bhinmal dated 24-10-1959 committing the petitioner to the Court of Sessions for trial under Sections 326 and 307, Indian Penal Code be quashed.

(2.) The relevant facts are these: Ajit Singh was challaned in the Court of the Sub-Divisional Magistrate. Bhinmal on 9-12-59 for offences under Sections 307, 324 and 326 I. P. C. In the calendar of witnesses Mohansingh, Narpatsingh, Ayub Singh and Kundansingh were cited as eye witnesses of the occurrence. The case originally was fixed for 23.12.59. On that day one witness Mohansingh was present but as the Sub Divisional Magistrate was out on duty the case was adjourned to 24-12-59. On that date one eye-witness was examined. The remaining three eye witnesses were not present. The Advocate for the accused conceded that the accused should be committed for trial under Section 307 I.P.C. The learned Magistrate consequently, on 2812-59, framed charges under Sections 307 and 326 I.P.C. and also recorded a Committal order committing the accused for trial. In the committal order it was recorded by the learned Magistrate that the remaining eye-witnesses were not examined as the accused's counsel conceded for framing of the charge and commitment. After the receipt of the case in the Court of the Additional Sessions Judge, Jalore it could not be taken up for a few hearings for one reason or the other. On 28th June, 1960 when, the trial was about to begin the counsel for the accused submitted an application to the Additional Sessions Judge praying that recommendations may be made to the High Court for quashing the commitment. The main ground on which the application was made was that the Magistrate had committed a serious illegality in committing the accused to the Court of Sessions for trial without examining all the eyewitnesses. Reliance was placed on Ghisa v. State, AIR 1959 Raj 294 : (ILR (1959) 9 Raj 944). The learned Judge rejected the petitioner's application. The petitioner has, therefore, filed the present revision application.

(3.) The learned Government Advocate in opposing the revision contended that the decision of this Court in A.I.R. 1959 Raj. 294 : I.L.R. (1959) 9 Raj. 944 recognizes a discretion on the part of the Magistrate in the matter of examination of eye witnesses. In a proper case Magistrate could pass an order of commitment without examining all the eye witnesses. He pointed out that Bhandari J. in his judgment at p. 954 of (ILR Raj); (at p. 298 of A.I.R.) quoted an extract from the Select Committee's report in which it was stated