H.C.P. Tripathi, J.
1. This revision is directed against an order of a Special Magistrate, First Class, Kanpur, committing the applicants under Section 307 read with Section 34 of the I.P.C. to stand their trial before the Court of sessions. According to the allegations made in the complaint, complainant Puttan Lal was shot at by a country made pistol by one of the applicants at the behest of the other applicants and had received therein gun shot injuries. A number of witnesses were produced in support of the allegations made in the complaint. Dr. Mathrani had stated that the complainant was admitted in the hospital as an indoor patient on the 6th January 1963, and was discharged on 13th of February 1963, and that on the 9th of January 1963, he was operated and three gun shots were taken out of his thigh. After examining two witnesses in defence the trial Magistrate was satisfied that there was a prima facie case against the applicants and, accordingly he committed them to the Court of sessions as has been indicated earlier.
2. The applicant's came up in revision before the Civil and Sessions Judge, Kanpur, against the aforesaid order of commitment but it was dismissed.
3. Sri P.C. Chaturvedi, learned Counsel for the applicants, has urged that as the enquiry before the trial Magistrate proceeded on the basis of a complaint the procedure envisaged under Sections 208 to 213, Cr.P.C. was applicable that the applicants had a right to adduce evidence in defence and that the trial Magistrate had committed an illegality in shutting out defence evidence by his refusal to summon the Investigating Officer, Sri Fateh Singh, for his examination in defence. Learned Counsel contends that this has gravely prejudiced the case of the applicants and the order of commitment recorded by the Magistrate without examining the Investigating Officer who was a material witness for the defence stands vitiated in law.
4. Sri S.S. Tewari, learned Counsel, for the opposite party, has on the other hand vehemently argued that under Sub-section (3) of Section 208, Cr.P.C. it was open to the Magistrate not to summon a witness asked by the defence if he deemed it unnecessary to do so and as the applicants will have a full opportunity to summon that witness at the stage of trial in the Court of sessions the non-examination of the Investigating Officer had not resulted in causing any prejudice to them. It is urged that as the Magistrate was only conducting an enquiry and not holding a trial and as there was sufficient evidence on the record to establish a prima facie case against the applicants the impugned order is legal and cannot be quashed in a revision.
5. Section 208 of the Cr.P.C. reads:
208. Taking of evidence produced.-(1) In any proceeding instituted otherwise than on a police report the Magistrate shall, when the accused appears or is brought before him, proceed to hear the complainant (if any), and take in manner hereinafter provided all such evidence as may be produced in support of the prosecution or on behalf of the accused, or as may be called for by the Magistrate.
(2) The accused shall be at liberty to cross-examine the witnesses for the prosecution, and in such case the prosecutor may re-examine them.
Process for production of further evidence - (3) If the complainant or officer conducting the prosecution, or the accused, applies to the Magistrate to issue process to compel the attendance of any witness or the production of any document or thing, the Magistrate shall issue such process unless, for reasons to be recorded, he deems it unnecessary to do so.
6. It will be noticed that Sub-section (1) makes it incumbent on the Magistrate to take all such evidence as may be produced on behalf of the accused. Sub-section (3) lays down that if the accused applies to the Magistrate to issue process to compel the attendance of any witness, the Magistrate shall issue such process, unless, for reasons to be recorded, he deems it unnecessary to do so. It is, therefore, obvious that Sub-section (3) casts a duty on the Magistrate to Issue process to compel the attendance of a witness applied for by the accused and if he deems it unnecessary to do so he must record his reasons. Any breach of these statutory provisions must be held to have resulted in causing prejudice to the accused and raising a question of law.
7. A perusal of the order sheet of the Court of the Magistrate shows that the complaint in the case was filed in the last week of April 1963 and the prosecution closed on 2ncK of April 1965. The accused were examined on 17th of May 1965, and on 24th they filed an application and deposited the necessary process fee, etc., for summoning Sub-Inspector Fateh Singh along with the case diary and some other papers in their defence. On this application the Magistrate ordered summons to be given Dasti and fixed 2nd of June for arguments. A day before another application was presented by the applicants praying that as it will not be possible for the witnesses summoned to reach the Court by that date some other date may be fixed for their examination. On this application the Magistrate passed an order fixing 2nd of July 1965, for the purpose. On that date neither Sub-Inspector Fateh Singh who had been summoned in defence had come nor the summons sent to him had returned to the Court. The applicants prayed, therefore, that some other date may be fixed for the examination of the Sub-Inspector. The Magistrate, however, after examining one or two witnesses in defence passed an order closing the defence and fixing 6th July 1965, for arguments and pronouncement of his final order.
8. It is thus obvious that although the Magistrate himself had thought on earlier occasions that the evidence of Sub-Inspector Fateh Singh was material for the defence and had, therefore, issued summons to him twice he suddenly changed his mind and refused to adjourn the case for his evidence or to wait for the return of the summons.
The learned Magistrate has not given any reasons for taking this extraordinary step although it was incumbent on him under the law to record his reasons if he did not think it necessary to adjourn the case for enabling the accused to produce the aforesaid defence witness. It must, therefore, be held that the Magistrate has failed to exercise his discretion in a proper manner which has resulted in creating prejudice to the applicants. It is settled law that the provision to take evidence on behalf of the accused is mandatory, that the reasons for refusal of process must be recorded and they should be valid and acceptable and that to refuse to examine evidence in defence on the ground that that evidence can be examined in the Court of Sessions is not a valid reason.
9. The decision of the Supreme Court in the case of Khushi Ram v. Hashim AIR 1959 SC 542, which has been referred to by the learned Sessions Judge dealt with a case under Section 561A of the Cr.P.C. and is not applicable to the facts of the present case.
10. Accordingly I allow this revision, quash the order of commitment recorded by the Magistrate and send the case back to the District Magistrate of Kanpur with a direction that he will transfer it to some other Magistrate of his choice who will allow the applicants to lead evidence in their defence and then shall proceed to decide it in accordance with law.