Krishna Rao, J.
1. These are petitions filed, by the accused for quashing the order of commitment dated 28-2-1955 made in P. R. C. No. 23 of 1954 on the file of the Stationary Second Class Magistrate, Razole.
2. the first point urged on behalf of the petitioners is that after framing a charge under 8. 210, Cr P. O, and before making the order of commitment under Section 213, Cr. P.C. the Magistrate did not attempt to get a list of witnesses from the accused and to exercise his discretion for taking their evidence as required by Sections 211 and 212, Cr. P.C. Under Section 211(1), Cr. P.C. after explaining the charge to the accused, the Magistrate has to require the accused to give at once a list of his witnesses to be summoned for the trial.
Under Section 211(2) leaving out the portion relating to the High Court, the Magistrate is vested with a discretion to allow the accused to give the list of witnesses subsequently. Section 212 lays down that the Magistrate may, in his discretion, summon and examine any witness named in the list given under Section 211, Cr. P.C. Section 213(1) authorises the Magistrate to make an order of commitment but only either after the accused has refused to give a list under Section 211 or after the witnesses included in the list have been examined by the Magistrate under Section 212.
Under Section 213(2) the Magistrate may cancel the charge and discharge the accused, in the event of his being satisfied after examining the witnesses for the defence that there are no sufficient grounds for committing the accused.
3. What was done by the Magistrate in the present case is illustrated in the record of questions put to and the answers given by accused 1 on 28-2-1955:
Question: Have you understood that the case against you will be tried by the Sessions Court?
Answer: I have understood it.
Question: Have you got witnesses to be examined in the Sessions Court on your behalf?
Answer: I have witnesses. I will file a list.
Question: Will you engage a pleader in the Sessions Court?
Answer: I will engage a pleader.
On the very day, the Sub-Magistrate made the order of commitment. It is manifest that the Magistrate did not comply with Sections 211 and 212, Cr. P.C. He did not ask the accused to give a list of witnesses at once as required by Section 211(1), Cr. P.C. He merely asked the accused whether they had witnesses to be examined at the trial and they replied in the affirmative and promised to file a list. Ho conveniently left the matter there.
Under Section 211(2), he had discretion to allow the accused time to furnish the list. But the Magistrate did not fix any time for filing the list, as he ought to have done, when he did not require the list to be given immediately. Instead of waiting for the list and using his discretion under Section 212 thereafter he straightway passed an order of commitment.
4. In 'Sripati Duley v. State' : AIR1953Cal10 (A), a Division Bench of the Calcutta High Court held that non-compliance with the provisions of Sections 211 and 212, Cr. P.C. amounts to an illegality which is not curable under Section 537, Cr. P.C. It was observed:
It is important to note that though under Section 210 the Magistrate, if satisfied that there are sufficient grounds for committing the accused for trial, is empowered to frame a charge, this section does not empower him to make the actual commitment. The commitment, if any, has to be made under Section 213, Criminal P.C. Before that stage is reached, the Magistrate has to follow the procedure under Sections 211 and 212.
We are unable to agree that the fact that Section 210 does not empower the Magistrate to make a commitment but Section 213 does, and that Section 213 cornea into operation after the procedure in Sections 211 and 212 has been followed is a fortuitous circumstance; it appears to us to be a clear and deliberate act of the legislature for the purpose of avoiding unnecessary and improper commitment. It may very well happen that after the Magistrate has obtained the list of witnesses, he will decide on scanning the list-it may very well be after suggestion has been made by the lawyers for the accused-to examine one or more of the witnesses named in the list. .. .. ..The evidence of such witness examined under Section 212 may conceivably be such as to make the Magistrate decide that though he originally did frame a charge under Section 210, the charge should be cancelled and the accused discharged.
The mere fact that a charge has been framed, under Section 210, Criminal P.C. is not by itself sufficient for the commitment of the accused persona to the Court of Session.
On a careful consideration of this matter we have no doubt in our mind that these provisions in Sections 211 and 212 are substantial provisions of procedure and non-compliance with these is not curable by the provisions of Section 537, Criminal P.C.'. This decision was followed by two other Division Benches of the same High Court in - 'Kashinath Das v. Kalipada Das' : AIR1953Cal12 (B), and 'Abanti Pramanik v. The State' AIR 1953 Cal 62S (C). In ' : AIR1953Cal12 (B)', it was held that.
This discretion of the Magistrate has to be judicially exercised and is not to be confused with the examination of witnesses that he made before the charge was framed.With respect, I agree with the above view regarding the need for compliance and the effect of non-compliance with the provisions of Sections 211 and 212, Cr. P.C. As the Magistrate here did not even made an attempt to get a list of defence witnessed in order to examine them, if necessary, before committing the accused, the order of commitment has to be quashed.
5. The result will be that the proceedings were regular until the charges were framed and were irregular thereafter. The Magistrate is directed to give a fresh opportunity to the accused to give a list of witnesses on their behalf under 8. 211, Cr. P.C. and to follow the procedure laid down in Sections 212 and 213, Cr. P.C. and dispose of the matter according to law.
6. The next contention is that there is no acceptable evidence against some of the accused, especially against accused 11. In this connection, it is pointed out that the Magistrate has treated the statement of the approver under Section 164, Or. P. O. as substantive evidence, which is clearly illegal See - 'Bhuboni Sahu v. The King' AIR 1949 PC 257 (D). It is also urged that the Magistrate has failed to consider the case against each accused separately and that the accused have been prejudiced, by copies of statements of witnesses to police having been not fumisned in time for being used under Section 162, Cr. p. C. The learned Public Prosecutor does not concede that this is a case of no acceptable evidence against any of the accused.
As the matter is being sent back to the Magistrate for taking evidence under Section 212, Cr. P.C. and making a fresh order of commitment, it is not expedient or desirable that this Court should go into the evidence at this stage for the purpose of deciding whether there is acceptable evidence against certain of the accused. These and other contentions put forward on behalf of the petitioners may be urged before the Magistrate at the further inquiry.
7. In the result, the petitions are allowed, the order of commitment is quashed, and the matter sent back to the Magistrate for disposal according to law.