GHISA Vs. STATE

JUDGEMENT

(1.) THIS is a reference by the Additional Sessions Judge, Tonk, recommending that the order of commitment of the Munsiff Magistrate, First Class, Malpura dated 1612-1957 committing the accused Gheesa and seven others under Sections 307, 148 and 307/149 I. P. C. be set aside.

(2.) ACCORDING to the challan, there were eleven eye-witnesses of the incident out of which the prosecution produced only five such witnesses. The remaining eyewitnesses were neither produced by the prosecution, nor were examined by the learned Magistrate. The learned Additional Sessions Judge is of the opinion that under Section 207-A, Sub-section (4), it was the duty of the committing magistrate to take the evidence of all the eyewitnesses and as admittedly he failed to do so, the commitment order was bad and illegal. He has therefore recommended that the committing order be set aside and the case be remanded to the committing Magistrate with a direction to examine all the witnesses to the actual commission of the crime whom the prosecution intends to produce at the trial and then to proceed according to law. This reference came up for hearing before me sitting as a Single Judge and I referred this to a Division bench as there was considerable divergence of opinion on the point involved in the case. Notices were issued to the accused and the Government Advocate, but no one appeared on behalf of the accused. We heard the learned Government advocate, who supported the order of commitment passed by the learned magistrate.

(3.) THE main point for determination in this reference is, whether under Subsection (4) of Section 207-A Cr. P. C. , it was incumbent on the committing magistrate to take the evidence of all the eye-witnesses, and as he has failed to do so, the order of commitment is illegal and the commitment should be set aside under our revisional jurisdiction.