N.M. Golvalker, J.
1. This is an appeal by the accused challenging his conviction Under Sections 467 and 409, Indian Penai Code, by the First Additional Sessions Judge, Raipur, in Sessions Trial No. 103 of I960.
2. The accused, who was employed as Secretary, in the 'Municipal Committee, Dhamtari, from 1-5-1957 to 30-10-1957 and as a Head Clerk before that, was found to have camailted forgery and criminal breach of trust with respsct to an amwnt of Rs. 150.38 We which was payable to 1MB Mr. let on account of the pries of the boots supplied to him. In one of the grounds of appeal before me it of crotended that his trial stood Hiatea Inasmuch as the mutant was not permitted to summon and examine Met Witnesses by the learned Additional sessions Judge. Since this ground went to fact of the whole trial, I decided to hear the parties on this ground as preliminary before proceeding to hear them on merits. Accordingly I heard them and proceed to decide this question as under.
3. The accused was committed to stand his trial in the Court of Sessions by order dated 24-10-1960 and when called upon to submit a list of the witnesses whom lie wished to be summoned as witnesses in his trial as required by Section 211, Criminal Procedure Code, the accused stated that he reserved the list and proposed to file the same in the Court of Sessions. The trial in the Sessions Court was ordered to commence on 6-2-1961 and it was to last till 9-2-1961 on which date the defence witnesses, if any, were to be examined. Accordingly the trial commenced on 6-2-1961 and lasted till 9-2-1961 when the entire prosecution evidence was over and the accused was examined. Till that day no attempt was made by the accused to file his list of defence witnesses. It was only on that day that he moved a petition for the purpose. The learned Additional Sessions Judge rejected the petition as it was inordinately delayed and the reasons for the delay were not sufficient.
4. It is admitted by the learned Counsel for the accused-appellant that when the accused does not avail of the opportunity provided Under Section 211, Criminal Procedure Code, to submit the list of his defence witnesses then it is entirely in the discretion of the Sessions Judge to summon those witnesses or not The provisions of Section 291, Criminal Procedure Code, are very clear on this question. Only those witnesses, though not previously Mmed by him but who are in attendance in Court, are to be examined on behalf of the accused and that the accused is not entitled to claim to have his witnesses summoned and examined as of right. Nevertheless it is generally accepted that the Sessions Judge has to exercise his discretion judicially in declining to show indulgence in such 'matters to the accused who has failed to avail of the | opportunity as provided Under Section in, Criminal Procedure Code, and who still claims indulgence of summoning his defence witnesses. Admittedly the offence with which the accused was charged was a serious one and the witnesses proposed by him would not have taken unduly a long time for being summoned and examined in Court. If the trial of the accused could not commence for nearly three months after receipt of the committal proceedings fn the Sessions Court, I do not see why the learned Additional Sessions Judge could not show a little indulgence by communing the defence witnesses even at that late stage. It would not have taken more than a week or 10 days to secure the presence of those defence witnesses in court and to have their evidence on record.
One of the proposed witnesses was a handwriting expert sought to be examined necessarily in rebuttal of the evidence of the expert examined on behalf of the prosecution. It may be noted that merely a bald opinion of the said expert was produced by the prosecution and it contained no reasons whatsoever which came for the first time on record when he was examined. This fact should have been considered by the Court to see if the accused was or was not taken by surprise a little (sic) necessitating examination of his own expert in rebuttal. I need not cite any authority on the question as to how the discretion by the Court in such matters is to be exercised as such a question has always to be decided on the peculiar circumstances available in each particular case. In the instant case, as i have already indicated, duration of the trial in the Sessions Court for about 10 days more would not have mattered much, especially in view of the seriousness of the offence with which the accused was charged. The refusal to summon the witnesses was, therefore, improper and injudicious.
5. However apart from the impropriety on the part of the learned Additional Sessions Judge in turning down the request of the accused to summon and examine his witnesses, I find very serious infirmities committed during the committal proceedings, which, in my opinion, go to the root of the validity of the committal itself. True, the accused did not point out these infirmities to me and I could only discover them when I went through the whole record right from the stage of the commencement of the committal proceedings. As the records stand the proceedings in the Court of the Magistrate First Class, chanter, were not committal proceedings, In his Court merely a charge sheet Under Section 409, Indian Penal Code, was presented by the police against the accused on 15-7-1959 and the Magistrate took cognizance of that offence Under Section 190 (b), Criminal Procedure Code, and proceeded to try the accused in the manner provided Under Section 251-A by framing a charge on 5-8-1959 against the accused Under Section 409, Indian Penal Code. It was only after the entire prosecution evidence excepting that of the handwriting expert was recorded that an application was moved Under Section 347, Criminal Procedure Code, by the prosecution on 29-9-1959 to submit that a further 'charge Under Section 467, Indian Penal Code, be framed and for committal of the accused to the Court of Sessions for his trial as the offence Under Section 467, Indian Penal Code, was triable exclusively by the said Court. This application was not disposed of till after the examination of the handwriting expert, and as I find from the record of the proceedings it was disposed of by framing an additional charge Under Section 467, Indian Penal Code, on 27-1-1960. The learned Magistrate could not legally frame such a charge if he intended to commit the accused to the Court of Sessions on this charge. He lost sight of the fact that all the prosecution witnesses till that date were not cross-examined by the accused in the light of any such accusation Under Section 467, Indian Penal Code, levelled against him. Till then he was being only prosecuted and tried for an offence punishable Under Section 409, Indian Penal Code. If, therefore, the Magistrate felt that the accused would have to be committed to stand his trial fn the Court of Sessions, he ought to have simply given out his mind to that effect to the accused without actually framing a charge. He ought to have thereafter held committal proceedings in the manner provided under Chapter XVIII, Criminal Procedure Code.
A charge on which an accused is to be committed to the Court of Sessions to stand his trial has to be framed in a case instituted on a police report at the stage contemplated by Sub-section (6) of Section 207-A of that Code and that stage arrives only after the accused has cross-examined the prosecution witnesses. True indeed that, as laid down by the Supreme Court in its latest pronouncement in the case of Shri Ram, Daya Ram v. State of Maharashtra : 2SCR890 , the committing Magistrate may, if he is satisfied, commit the accused without examining any witnesses solely on the basis of the material produced Before him Under Section 173, Criminal Procedure Code. But if the prosecution examines any witnesses their evidence has to be subjected to cross-examination by the ecclesia if he wants to. He cannot be denied that right.
In the instant case the charge Under Section 45/, Indian Penal Code, was framed as in a trial of a warrant case and not as in committal proceedings in terms of Section 207-A, Criminal Procedure Code. By framing the additional charge the accused was apparently deprived of that valuable right which was available to him Under Section 207-A of the Code. No doubt, on 27-1-1960 the charge was explained to the accused and he was further examined also. But as already indicated there was no cross-examination of the prosecution witnesses in the light of this charge. Thereafter the Magistrate no doubt heard the parties and proposed to pass an order presumably a committal order. But unfortunately he died and the order that he had written and proposed to be delivered became inconsequential. His successor did propose that both the charges be quashed and his recommendations to the Sessions Judge were, I must say, intercepted by the Additional District Magistrate and he directed the Magistrate to proceed to commit the accused leaving the irregularities, if any, to be corrected in the Sessions Court. Accordingly, the succeeding Magistrate on 29-1-1960 passed the committal order committing the accused to stand his trial for having committed the offences punishable Under Sections 409 and 467, Indian Penal Code.
I have already pointed out that the framing of the charge on 27-1-1960 without giving an opportunity to the accused to cross-examine the witnesses in the light of this additional accusation was absolutely in violation of the provisions of Section 207-A, Criminal Procedure Code. The committal thus is rendered highly improper and erroneous. It cannot be disputed that the accused was manifestly prejudiced by the same. A similar situation, though arising under the Criminal Procedure Code prior to its amendment in 1955, had arisen before the Supreme Court and it was laid down that the omission to follow the procedure laid down in Chapter XVIII of the Code was not a mere irregularity curable under any provisions of the Code but render ed the committal unsustainable Chhadamilal Jain v. State of Uttar Pradesh : 1960CriLJ145 .
6. However as I see and with which the learned Counsel for the accused-appellant also agreed that no useful purpose will be served by quashing the commitment at this stage. The learned Counsel for the accused-appellant agreed that if the accused is ordered to be retried afresh whatever prejudices that might have been caused to him by the lacuna in the committal proceedings they would be removed and he would be getting a full and A.I.R. trial. He will also thereby get an opportunity to have his defence witnesses summoned. I further find that the charges against the accused were not framed as required by law and the learned Additional Sessions Judge had to reframe the charges afresh and that too was done on the date of the commencement of the trial. This also, in my opinion, entitled the accused to claim indulgence in the matter of summoning defence witnesses as required Under Section 231, Criminal Procedure Code.
7. Therefore considering all that has been pointed out by me in the foregoing paragraphs, the conviction of the accused has to be quashed and his retrial ordered. However it will not be fair to direct the same Additional Sessions Judge to try the accused since he has already considered the prosecution evidence once and found the accused guilty. Accordingly, set aside the conviction of the accused and order that he be retried by some other competent Additional Sessions Judge. The records snail, therefore, be sent back for the trial of the accused according to law.