P.S. Safeer, J.
(1) This petition is directed by an order made by Shri Lokeshwar Prasad. Judicial Magistrate, Delhi on 26.2.1973 U/S 213 of the Criminal Procedure Code hereafter called the 'Code'.
(2) A complaint had been instituted before the Chief Presidency Magistrate, Madras on 12.12.1962 against 8 parsons and the three petitioners before me were amongst them. Supreme Court transferred the complaint to Delhi and the District Magistrate directed in the first instance Shri Amba Prakash Magistrate, Delhi to deal with it. Thereafter various Magistrates dealt with the proceedings. The Prosecution produced 61 witnesses for the purpose of establishing a prima facie case in order to persuade that the accused be committed for trial by the Higher Court. Two of the accused persons K. E. Naido and Jagat Singh died during the course of the proceedings before the Court below.
(3) I have perused the impugned order. As from paragraph 2 onwards the case set up against the accused is noticed and it is observed that the prosecution had examined 61 witnesses. The impugned order noticed the law laid down in respect of the duties enjoined upon the Court passing the order of committal. It was clear that where the Court was to find that a prima facie case had been established for committing the accused for standing their trial they were to be committed and if the entire evidence was to lead to the conclusion that there was no case for passing an order of committal the accused were to be discharged.
(4) There may be several contingencies. In case of one of the accused the prosecution may establish that he deserves to be committed for being tried for a particular offence. In case of several accused persons where evidence is adduced regarding the committal of different offences the Court has to decide after a careful appreciation of evidence as to which of the accused is to be committed for trial and for which of the offences. Section 213 in the Code, is :-
'S.213.Order of commitment:-(1) When the accused, on being required to give in a list under section 211, has declined to do so, or when he has given in such list and the witnesses (if any) included therein whom the Magistrate desires to examine have been summoned and examined under section 212, the Magistrate may make an order committing the accused for trial by the High Court or the Court of Session (as the case may be), and (unless the Magistrate is a Presidency Magistrate) shall also record briefly the reasons for such commitment. (2) If the Magistrate after hearing the witnesses for the defense, is satisfied that there are not sufficient grounds for committing the accused, he may cancel the charge and discharge the accused.'
A Magistrate other than the Presidency Magistrate is required to record his reasons for making an order committing the accused for being tried by the Higher Courts. He can pass such an order only after discussing the evidence and stating the reasons which persuade him that a particular accused be committed for being tried for a precise offence. Paragraph 10 of the impugned order shows that the Court below did give hearing to the learned Prosecutor as well as the counsel appearing for the accused and it is to the effect that the Court bad taken into consideration the documents including the evidence adduced by the prosecution. That statement carries a taint of arbitrariness. It is not safe to accept such a statement in a committal order. The order must by itself disclose that the Court had really appreciated evidence and had then come to the conclusions persuading that particular accused be committed for trial for certain offences.
(5) Accepting the petition it is directed that Shri Lokeshwar Prasad who passed the impugned order may re-decide as to which of the accused is to stand trial for a particular offence.
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