S.B. Sen, J.
1. A challan was filed by Police Ujjain under Sections 307, 147 and 148, Indian Penal Code against the applicants, who are seven in number. The committal proceedings were started under Section 207-A of the Criminal Procedure Code. The Magistrate after examining prosecution witnesses found that the evidence and the documents did not disclose any ground for commitment; but he was of the view that he should try the case himself on charges under Sections 324, 325, 147, 148 and 149, Indian Penal Code and framed the charges accordingly against them.
2. All the applicants pleaded not guilty to the charges and the Magistrate fixed the case For 30-10-1963 for cross-examination of the prosecution witnesses alreardy examined on behalf of the prosecution. The witnesses, however, could not be cross-examined for various reasons.
3. On 16-6-1964 an application was submittted by the applicants that the Magistrate decided to try the case himself and therefore, the evidence recorded by him under Section 207-A. Criminal Procedure Code could not be treated as evidence against them. They, therefore, prayed that the witnesses should be examined afresh before they could cross-examine them. The Magistrate rejected this prayer. Applicants went up in revision but that was also rejected. They have now come up in revision before this Court.
4. The only point urged before me is that after the Magistrate decided to try the case himself, he should have followed the procedure laid down under Section 251-A and as such the witnesses should be examined afresh.
5. The procedure adopted by the Magistrate is now undoubtedly a procedure that is enjoined under Section 207-A, Sub-section (8). It says that when the Magistrate is of the opinion that the accused cannot be committed and that he is not in a position to discharge him: and if it appears to him that the accused should be tried by himself or some other Magistrate, he should proceed accordingly.
6. It is at this stage the question arises whether he has followed the procedure laid down under Section 251-A or not. There are three courses in the commitment proceedings:(1) when the Magistrate finds that there is ground for commitment, he shall commit; (2) when he finds that there is no ground to proceed against the accused in any other manner, he should discharge; (3) and that when he finds that there are grounds to proceed against the accused he has to proceed himself or ask any other Magistrate competent for the purpose to proceed. The procedure under Section 207-A ends under category (3) when the Magistrate chooses the step to be taken under Sub-section (6). After that stage the procedure laid down under Section 251-A comes in.
7. Section 207-A does not lay down any procedure as to how the Magistrate should proceed with the case when he feels that he should proceed against the accused himself. There are different procedures laid down in the Code for different cases. Regarding trials before the Magistrates either summons or warrant procedure has to be followed. Regarding trial of warrant cases two distinct procedures again have been laid down one is on police report and the other when it is filed by a complainant. The instant case is instituted undoubtedly on a police report. If that is so, I do not understand why the procedure mentioned under Section 251-A of the Criminal Procedure Code should not be followed.
8. There is a wide difference between the procedure laid down under Section 207-A and Section 251-A of the Criminal Procedure Code. In a commitment proceeding the evidence of those witnesses on which a commitment order is to be based is not sufficient evidence in a Sessions trial. Before the Sessions Court, if the commitment is made the witnesses have to be examined afresh. Therefore, the accused may not be very particular in cross-examining the witnesses at the stage before the framing of the charge. We are not considering prejudice because the trial has not begun. Question of prejudice can only come in when something irregular or illegal has already been done. We are considering which should be the normal procedure.
After the Magistrate came to the conclusion that there was no case for commitment and that he could try the case himself, he framed the eharge. The trial commences subsequent to the framing of the charge and if the trial commences after the framing of the charge, strictly speaking there at no legal evidence of the prosecution after framing of the charge. Under Section 251-A, It if after the charge is framed that the oral evidence comes in. Whatever in recorded before the framing of the charge cannot be legal evidence alter the framing of the charge because Section 151-A does not contemplate any such evidence. If the evidence recorded in commitment proceeding is not sufficient evidence before the Sessions Court when the accused is tried after the commitment, I do not understand why the evidence recorded before the commitment should be taken as evidence when the trial is to be held by the Magistrate himself. The principle behind recording fresh evidence before the Sessions Court after commitment is that the evidence recorded by the Magistrate is only the evidence during the inquiry. The same principle must also apply in view of clear provision in Section 2B1-A(7) of the Criminal Procedure Code.
9. It may sometimes happen that when the commitment proceeding is for more than one offences, the accused may not be very particular in observing what the witnesses are saying in respect of those offences as he know that the witnesses are again to be examined in a Sessions trial. Much depends on the offences on which the accused is charged. He may or he may not be prejudiced subsequently. But that is not the question we are discussing. I may repeat that we are not talking of any irregularity in the procedure as contemplated under Section 387, Criminal Procedure Code.
10. In Thagru Tewari v. State of West Bengal AIR 1959 Cal 176 a Division Bench of the Calcutta High Court have taken the view as under:--
'........ where a charge is being framed by a Magistrate because he is satisfied in any enquiry under Section 207-A that there is no ground for committing the accused for trial, but it appears that he should be tried by himself or some other Magistrate and the Magistrate has not only examined the documents referred to in Sub-section (2) of Section 251-A but has in addition taken evidence referred to in Sub-section (4) of Section 207-A, it is absurd to suggest that he cannot frame a charge against the accused after deciding that the trial shall be before him merely because he has taken into consideration the evidence referred to in Sub-section (4) of Section 207-A. It is true that Section 251-A in its third sub-section does not permit the magistrate to examine the witnesses before framing the charge but where the decision to try is made under Section 207-A(6) the legislature by authorising the Magistrate 'to proceed accordingly' has authorised him to frame a charge for a suitable offence in such a case. The strict observance of Sub-section (3) in such a case would be impossible. It cannot be thought for a moment that that would make the trial irregular. Clearly, therefore, this departure from the strict observance of Sub-section (3) of Section 251-A of the Code of Criminal Procedure is permitted. I can see no reason, therefore, why the further departure namely, the non-examination by the prosecution again of the witnesses who have been already examined in the enquiry before the same Magistrate should be considered to vitiate the trial. It is well to remember the principle that the Court should avoid putting on the statute a construction which is Inconvenient or unjust unless it is clear that this is the intention of the legislature. In my judgment, it cannot have been the intention of the legislature that in such a case where the Magistrate has decided to proceed with the trial himself under Sub-section (6) of Section 207-A, the witness already examined should again be examined by the prosecution.'
11. It is clear that their Lordships proceeded on the basis that it is impossible to follow strictly the procedure laid down under Section 261-A in a case where the Magistrate proceeds accordingly as contemplated under Section 207-A(6). With due respect, I do not think that it is an impossibility. Moreover, their Lordships were discussing the likely prejudice The question was whether for the procedure that was followed not being strictly in accordance with Section 251-A, the accused could challenge the conviction. The point that was agitating in their Lordships' mind if I may say so, is the effect of such a trial and not in what way the Court should have proceeded after the committing Magistrate decided to proceed with the case himself.
12. Section 207-A, Sub-section (7) is a step which has to be taken after the stage under Sub-section (6) is over. Now it is at this stage that we may call it the turning point in the procedure. Under Sub-section (7) the matter may go to the Sessions and all the witnesses examined by the Magistrate will again be examined by the Court of Session. Now if the Magistrate under Sub-section (6) decides to proceed himself against the accused then the trial is under Section 251-A which is a trial on a police report. Therefore, the Magistrate has to frame a charge as contemplated under Section 251-A. It may be that he has got an additional advantage of the evidence of certain witnesses recorded on oath, but that does not mean that the step which is subsequent to the framing of charge contemplated under Section 251-A has to be avoided.
13. Sub-section (3) of Section 251-A contemplates consideration of documents and examination of the accused and after hearing both the sides if the Magistrate feels that there are grounds for framing a charge he shall frame a charge against the accused. The only difference at this stage in a trial under Section 251-A and Section 207-A is that in addition to the documents and argument mentioned in Section 251-A, Section 207-A contemplates consideration of certain oral evidence already recorded. After the framing of the charge under Section 251-A(3), all the procedure laid down in the section can be followed without any difficulty. Only addition is that evidence once recorded has to be recorded again. Subsequent steps are very easy and there is no difficulty, not to speak of impossibility.
14. Section 251-A(4) sayi that the charge shall be read over and explained to the accused. The step oan easily be taken. Sub-section (5) contemplates that it the accused pleads guilty, the Magistrate shall record the plea and may in his direction, convict him thereon. This subsection the can be complied with. The further procedure laid down under Section 251-A can also be easily followed. I need not quote the various sub-sections. What I mean to say is that if strict observance of .Sub-section (3) of Section 251-A is not possible, it does not mean that to the extent the procedure can be followed should not be followed.
15. With due respect, I do not agree with the view expressed by the Calcutta case, AIR 1959 Cal 176 (supra) in the following lines :--
''The strict observance of Sub-section (3) in such a case would be impossible. It cannot be thought for a moment that that would make the trial irregular ............... It is well toremember the principle that the Court should avoid putting on the statute a construction which is inconvenient or unjust unless it is clear that this is the intention of the legislature.'
16. It is not inconvenient or unjust for the witnesses to come twice and to get themselves examined twice. If after commitment the witnesses could be examined once again before the Sessions Court, I do not understand why there should be any difficulty for examining them before the Magistrate where the particular trial begins. Moreover, in the Calcutta case as we have already seen the position was that the trial was over and the objection was raised after the conviction of the accused; and their Lordships were considering whether a trial was vitiated by not following the procedure laid down under Section 251-A. In the instant case the trial is to begin and we should see what should be the normal procedure. We are not in the instant case considering the irregularities in the trial. As, in my view, the witnesses have to be recalled for examination-in-chief after the framing of the charge, the order passed by the trial Magistrate as well as by the learned Sessions Judge are wrong.
17. The case reported in Chhadamilal Jain v. State of Uttar Pradesh, AIR 1960 SC 41 cited by the opponent speaks of inquiry under Section 207, Criminal Procedure Code and therefore, is besides the point.
18. The result is the revision petition is allowed, the order passed by the learned Courts below is quashed and the case is sent back to the trial Magistrate with direction to follow the procedure laid down under Section 251-A, Criminal Procedure Code and dispose of the case according to law.