Pakenham Walsh, J.
1. This is an application to quash the commitment order of the Sub-divisional Magistrate of Tenali in C.C. No. 44 of 1931. There was an occurrence on 15th August, 1931. The Police filed a charge against one party which included a charge of murder. A counter-complaint was made and the Police tiled a referred charge sheet on the ground that the injuries found on the complainant were due to a right of private defence. In that case a private complaint was made to the Court and taken on file. The case charged by the Police was Pr. C. No. 3 of 1931. It was committed to the Sessions. The private complaint in the counter-case was taken up as a warrant case under Sections 147 and 323, Indian Penal Code. The Magistrate proceeded with it as a warrant case not only up to the framing of the charge but to the point of asking the accused to plead to it and whether they wished to recall and cross-examine the prosecution witnesses. The accused said that they wished to re-cross-examine all the prosecution witnesses and promised to furnish a list of defence witnesses. The Magistrate had discharged certain of the accused before the charge was framed under Section 253, Criminal Procedure Code. On 2nd February, 1932, however, he seems to have changed his mind and to have resolved to commit the accused to the Sessions as the case was counter to Pr. C. No. 3 of 1931. He did this on the authority of In re Krishna Pannadii. That Pr. Case No. 3 was posted for trial before the Sessions Court on 28th March and this case was posted on the 4th April, 1932. This petition to quash the commitment was presented on 23rd March, 1932. An application for staying the Sessions trial of the other case (Cr. M.P. No. 318 of 1932) was put in on the 29th March. As that case was already under trial at that time I did not feel justified in granting any further stay than to direct a stay of judgment for one week. This order was made on 30th March, 1932 and that stay expires to-day. 1 understand that the case is posted for judgment on 8th April, two day hence.
2. I think there can be no doubt that the commitment in this case must be quashed for the simple reason that the accused had no opportunity of adducing their defence evidence before committal. The Code gives one opportunity to an accused to adduce evidence before the charge is framed and a second to get the charge set aside if he can induce the Magistrate to do so by further defence evidence after the charge. There is no doubt now with the omission of the words 'he shall stop further proceedings' in Section 347, Criminal Procedure Code, that when a Court trying a warrant case determines to commit the case, it must follow the procedure in Chapter XVIII. See the remarks in In re Chinnavan (1904) 23 I.C.734 and In re Damodaram (1929) I.L.R. 52 Mad. 995 : 57 M.L.J. 555. The learned Public Prosecutor did not contend that the commitment could be upheld, but it was argued by Mr. Ethiraj for the complainant in the present case that it must be shown that the accused had sustained prejudice. None of the cases quoted for this have I consider any bearing. Ram Ghulam v. Emperor : AIR1931All434 is a case exactly similar to In re Chinnavan (1914) 23 I.C. 734. The whole trial had proceeded right up to the stage of the delivery of judgment. The accused therefore had been able to call the whole defence evidence and had had more opportunities of cross-examining the prosecution witnesses than they would have had under Chapter XVIII. It was therefore held that the commitment need not be quashed. Another case quoted is Bhat v. Emperor : AIR1931Bom517 . That case can be distinguished from the present by the fact that it was found that the accused knew that the case would be committed though it was tried as a warrant case. Here, there could have been no such anticipation on the part of the accused. As I have remarked above, not only were they asked to plead to the charge but they were asked further whether they wished to recall and cross-examine the prosecution witnesses. The commitment I think must obviously be quashed. If the accused are to be committed, and if further proceedings under Chapter XVIII are to be continued, the question will arise as to whether the accused have the right of further cross-examining the prosecution witnesses. It is argued on their behalf that, as they anticipated that they would have an opportunity of cross-examining them after the charge, they did not do so as fully as they would otherwise have done. The learned Public Prosecutor quotes G.V. Raman v. Emperor (1929) I.L.R. 57 C. 44 to the contrary. I do not think, however, that case bears him out. In that case I gather though it is not clearly stated that when the very first witness was being examined, the Court said that it would treat the case as a committal case and not as a warrant case. That this decision could not have intended to lay down, that if the case were treated as a warrant case throughout and then committed, the accused would have no right of cross-examining, is clear from the remarks on page 54 where the Bench says:
It is possible, and it generally so happens, that the Magistrate starts a. case before him with a view to try it himself; but in the midst of the trial, when certain facts have been disclosed, he makes up his mind to commit the accused to the Sessions. When the trial was commenced before him, he treated it as one of a warrant case and the accused exercised the right to> reserve cross-examination after charge. If, in the midst of the trial or immediately after finishing the evidence for the prosecution, the Magistrate decides to commit the accused to the Sessions, it does not seem just to the accused that he should, at that stage, because the Magistrate has come to a certain decision, lose the right which he had before such decision. In such a. case, Section 347 should not be held as compelling the Magistrate to refuse to allow the accused to cross-examine the witnesses and to commit at once the case to the Sessions.
3. So this is not an authority for the view contended for by the learned Public Prosecutor. I do not, however, think it necessary to say anything final on this point, because I am convinced, under the circumstances of this case, that the ends of public justice will best be served by quashing the commitment and ordering the Court to dispose of the case itself and continue the proceedings at the point where it determined to commit. I may perhaps note one other slight irregularity to avoid a possible future objection. On 2nd February, 1932, after the charge was framed and pleaded to, the Court asked the accused whether they wished to re-call and examine the prosecution witnesses. The question should under the Code have been deferred until the next day, unless, for reasons recorded, the Magistrate saw fit to do otherwise : vide Section 256. In order to make the matter perfectly regular, the Magistrate should now again ask the accused this question.
4. It has been strongly urged before me by the learned Public Prosecutor and by Mr. Ethiraj that this Court has laid down that a case and a counter-case should be tried together. There is nothing in the Code defining the procedure and it is quite obvious that all these remarks by learned Judges are meant to expedite justice and in the interests of it. To take first the case quoted by the learned Counsel In re Krishna Pannadi (1929) 58 M.L.J. 352. In that case, both the cases were already before the Sessions Court and after the pronouncement of the judgment convicting in one case, the Public Prosecutor withdrew the other. That is not a case similar to the present at all, and the observations made must be taken in the light of that particular case.
5. Then conies G. Krishtamma In re (1929) 2 Mad. Cr. C. 238. There were there a case and a counter-case, one of which was triable by the Magistrate and the other by the Sessions. The Police charge-sheeted both the cases. The Magistrate convicted the accused in one case and committed the other case to the Sessions. The learned Judges remarked that there is nothing to prevent him committing to Sessions under Section 347 and that the case and the counter-case arising out of the case should, if practicable, be tried by the same Court. It may be noted that this opinion is obiter and was not necessary for the disposal of the case, but its soundness cannot be disputed. Then there is the decision of Jackson, J., in Sathakutti Pillai v. Pichai Cruz (1931) M.W.N. 1316. That again refers to cases already before the same Court and the learned Judge does not even say there that the cases must both be charged, for he says, they should be conducted together as far as charge or discharge. Other High Courts have taken a somewhat different view on this matter.
6. In Emperor v. Karam Singh A.I.R. 1930 Lah.312 it was held that in committing cases not exclusively triable by the Court of Session, Magistrates should exercise a proper discretion and give adequate reasons for making commitment to the Court of Sessions. Reasons should be such as to show whether the commitment is made in the sound exercise of the discretionary power vested in the Magistrate by law, and if he does not give adequate reasons, the commitment may be quashed. It is further observed that a case triable by a Magistrate should not be committed merely to avoid a possible conflict of decisions and that the proper course is to await the result of the Sessions trial. Another case is Emperor v. Nathu A.I.R. 1932 Lah. 168. It is there stated that an apparent connection of a case under Section 326, Penal Code, with a case under Section 302 is no ground whatsoever for committing it to the Sessions Court when the offence involved is triable and can be adequately punished by a First Class Magistrate or one exercising powers under Section 30, Criminal Procedure Code. If the object of the Magistrate is to avoid a possible conflict of decisions it can be achieved by awaiting the result of the Sessions trial in the case under Section 302. I do not at all wish to say that this is the view which has been taken by the Madras High Court, but it has not been laid down anywhere as an absolute rule that all charges and counter-charges must be tried by the same Court. If the learned Magistrate in this case had started with commitment proceedings, it would have been probably the best course for all concerned, but what I have to look to as things stand at present is, whether it would be at all in the interests of public justice to order him to proceed with this case now as a Pr. Case. It will inevitably mean in the first place an examination of the defence witnesses before a charge is framed, for, of course, the charge will have to be set aside in order to get back to the stage at which the Pr. case proceedings can be applied. I understand accused have cited more than 50 defence witnesses. Then, as I said, I am rather inclined to think that the accused would be entitled to further cross-examine all the prosecution witnesses. After the charge they would again be entitled to call further defence witnesses, and all this to enable the Sessions Court to try this case along with the counter-case. If these committal proceedings occupy two or three months, is his judgment in the other case which has been concluded to be held up indefinitely? Supposing even the judgment which is probably being now written is stayed, is the Court to attempt to erase the recollection of it from its mind? If it does so, by the time the counter-case came to Sessions five or six months afterwards, the facts in the present Sessions case would have been forgotten by the learned Judge. It may be noted that though Mr. Ethiraj says a great deal here about prejudice to the private complainant in the case before the Magistrate, if cases are not both tried before the Sessions Court, the complainant evidently did not wake up to that prejudice till after the charge was framed and till his pleader quoted Krishna Pannadi v. Emperor (1929) 58 M.L.J. 352 to the Magistrate. It is even possible that the learned Magistrate discovered that case himself. If a procedure is laid down in the Code, that procedure must be followed even if in any particular case it might cause great delay and hardship or even a possible failure of justice; but where there is no procedure laid down in the Code, I see no reason at all why this Court, in order to enforce the very salutary observations made by Judges of this Court, should treat these as if they were rigid and inflexible rules which have to be followed, no matter what the delay, absence of benefit, or possible miscarriage of justice which this course may lead to. I see little use, and many objections to this case being now committed to Sessions. I am of the opinion that the proper order to be passed in this case is, that the commitment order should be quashed and that the Court should dispose of the case as a warrant case bearing in mind the remarks which I have made with regard to again asking the accused whether they wish to recall and cross-examine any of the prosecution witnesses.