1. In this case the Sessions Judge moves us to quash a commitment made to his court on the ground that the committing Magistrate refused to summon certain witnesses whom the accused desired to be examined by the Magistrate under Section 208 of the Criminal Procedure Code prior to his making the commitment. It appears that examination and cross-examination' of the witnesses for the prosecution was closed on the 5th June last and accused were examined on the same day and stated that their Vakil would file written statements on their behalf. The case was therefore adjourned to the 8th June when the written statemants were put in and the Vakil of the accused argued that there was no sufficient evidence for the prosecution to justify a commitment. Owing to the absence of one of the accused (who was on bail) the case was adjourned to the 11th June and then again to the 20th June and then the present application was for the first time made to summon and examine some sixteen witnesses for the defence. The Magistrate refused to do so as he held that the application was made too late and he drew up a charge and committed the accused to the Sessions on the same day. For the accused it is argued that Sections 208, 239, 210 of the Criminal Procedure Code rendered it compulsory on the Magistrate to issue the summonses and examine the witnesses as requested by the accused and reliance is placed on two unreported decisions of this Court and on the decisions Queen Empress v. Ahmadi I.L.R. (1898) A. 264 and Emperor Muhammad Hadi.2 We do not think that the contention of the accused can be supported. Section 208 (1) of the Criminal Procedure Code, no doubt, requires the Magistrate to record '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,' and Sub-section (3) of the same section enacts that 'If the complainant, or the officer conducting the prosecution, or 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 will be observed that Sub-section (1) contemplates the production of evidence by the prosecution or by the accused, without the aid of the Magistrate: Sub-section 3 contemplates the intervention of the Magistrate to secure the attendance of witnesses and in regard to this evidence the Magistrate has a discretion for reasons to be recorded by him to refuse to issue process, if he deems it unnecessary to do so. When, therefore, Section 210 requires 'the evidence referred to in Section 208 Sub-sections (1) and (3)'' to be recorded before a charge is drawn up, it does not require the Magistrate to record the evidence of witnesses whom, in the exercise of the discretion given by subsection (3), he has deemed it unnecessary to summon. This procedure appears to be convenient and reasonable whereas the procedure contended for by the accused, viz., that he may delay asking the Magistrate to summon his witnesses until the last minute before the charge is drawn up and then require him to summon and examine his witnesses, would lead to undue delay in the commitment of cases and the evils which such delay would entail. The proceedings before the Magistrate is only an inquiry preliminary to the trial and while the law in order to avoid unnecessary commitments is careful to require the Magistrate to examine any witness produced before him by the accused and provides for the Magistrate also summoning and examining witnesses for the defence before a charge is drawn up and even gives the Magistrate a discretion (Section 212) to examine witnesses for the defence after the charge is drawn up and to then cancel the charge and discharge the accused (Section 213) it does not compel a Magistrate to summon and examine witnesses for the defence after a charge has been drawn up or even before the charge had been drawn up if the Magistrate for reasons to be recorded, deems it unnecessary to do so.
2. This distinction between the duty of the Magistrate in regard to evidence produced before him by the accused and evidence not produced before him, but which the accused desires him to obtain by the issue of process has not always, we think, been borne in mind by the Courts and the omission seems to have led the learned Chief Justice of the Allahabad High Court Emperor v. Muhamad Hadi I.L.R. (1898) A. 264 to state the rule in terms wider than those of the code and wider also than those used in Queen Empress v. Ahmadi I.L. R (1904) A. 177 which he refers to in support of his statement of the rule. (See also the unreported decision of this Court in Cr. M.P. No 298 of 1911). Mr. Sarma for the Public Prosecutor has drawn our attention to the case of Phanindranath Mitra v. Emperor I.L.R. (1904) A. 177 in which it is held that Section 347 of the Criminal Procedure Code 'lays down that when a Magistrate has made up his mind to commit an accused for trial ' he shall stop further proceedings' and commit the accused for trial and that this section is not to be read as subject to the provisions in Sections 208 to 210 to which we have referred. We are unable to accept this view or to rely on Section 347 in support of the Magistrate's action.
3. Having regard to the subject matter of Section 346 and Section 347 and to the corresponding Section in the Code of 1872 (See. Section 221 of that code and Empress of India v. Ilabi Buksh I.L.R. (1898) A. 264 we think that the directions in Section 347 to 'stop further proceedings' does not justify a Magistrate in disregarding the directions in Sections 208 to 210, but only requires him to stop proceeding with the case as a trial and instead to commit the case to the sessions for trial by that court 'under the provisions herein before contained' i.e.. under the provisions of Sections 208 to 210 and the other provisions in chapter 18 of the Code. In the present case we agree with the Magistrate that the application by the accused to summon and examine their witnesses was so long delayed that the Magistrate was justified in refusing to accede to it at that stage. We therefore see no reason to quash the commitment.