P.B. Mukharji, J.
1. The petitioners complained against the order of commitment made by the learned Magistrate on 30-3.1951, wrongly described as 30-1-1951. The petitioners by that order were committed to the Court of Session under Section 395, Penal Code, The order of commitment is one of those omnibus and rolled-up orders of committal which have become very frequent in these days but which nevertheless are in complete disregard of the statutory provisions contained in Sections 211, 212 and 213, Criminal P. C. Here in this order of committal, first, charge is framed, then the petitioners are committed to recite that the charge is read over and explained to the accused. Thereafter the accused are stated to have been called upon to furnish a list of persons whom they want to be summoned on the trial to give evidence on their behalf and then towards the end after having taken a list of witnesses the learned Magistrate records:
'I do not think that sufficient grounds had been made out for examining any of these witnesses under Section 212, Criminal P. 0.'
On a reading of this order, it will appear that the Magistrate has put the cart before the horse. After charge has been framed under Section 210, Criminal P. C. provides that a list of witnesses for defence shall be given by the accused. In fact the provision is that the accused shall be required at once to give such a list of persons whom he wishes to summon to give evidence on his trial. Then the Magistrate in his discretion under Section 212, Criminal P. C. may summon and examine any witnesses mentioned in that list under Section 211, Cri-minal P. C. This discretion of the Magistrate has to be judicially exercised and is not to be confused with the examination of witnesses that he made before the charge was framed. Under Section 213, Criminal P. C., it is clearly laid down that when the accused on being required to give in a list under Section 211, Criminal P. C. has declined to do so or when he has given in such a list and the witnesses, if any, included therein whom the Magistrate desires to examine have been summoned and examined, under Section 212, Criminal P. C. the Magistrate may make an order committing the accused for trial by the Court of Session. Now these conditions are the conditions which must be satisfied before the Magistrate makes an order of commitment. One of these conditions is that he must be satisfied as to whether any examination of any of the witnesses mentioned in Section 211, Criminal P. C. is in his discretion required or not and it is only when he has been so satisfied that he can make the order committing the accused. Otherwise, any order of commitment without making up his mind or exercising his discretion on this particular point mentioned in Section 212, Criminal P. C. cannot be justified or sustained.
The confusion on this branch of the procedure arises out of the fact that the object of examination of witnesses before framing of the charge is and may be very different from the object of examination of witnesses after the charge for the purposes of making an order to commitment. So long as these different objects are borne in mind clearly the confusion is easily avoided. After having made the order of commitment the learned Magistrate in this case went on to say that he did not think it necessary to examine any of the witnesses mentioned in the list supplied under Section 211, Criminal P. C., whereas he should have said that he had considered the question whether any witnesses should be examined under Section 212, Criminal P. C. and has come to the conclusion that no such examination was necessary and then should have proceeded to make the order of commitment. The reason why the object is different with regard to evidence taken after the charge is this. When evidence is taken under Section 208, Criminal P. C., that is done with a view to see whether a charge can be framed under Section 210, Criminal P.C., but when the Magistrate exercises his discretion whether after the charge has been framed he should examine the witnesses under Section 212, Criminal P. C., he does that with a view to find out whether he should make an order of commitment or not. This view which we take is supported by another decision of a Division Bench of this Court: Sripati Duley v. State in criminal Revn. No. 659 of 1950 (Cal.). This decision was given on 1-2-1951. There the Bench came to this conclusion:
'On a careful consideration of this matter we have no doubt in our mind that these provisions in Sections 211 and 212are substantial provisions of procedure and non-compliance with these is not curable by the provisions of Section 637, Criminal P. C.'
We find ourselves in complete agreement with the view expressed there.
2. On this ground alone the commitment order should be set aside.
3. Two other points have been urged before us, one is that the examination of the accused under Section 209, Criminal P. C. had taken place at a time not justified by the terms of Section 209, Criminal P. C., the other is that under Section 208, Criminal P. C., some of the witnesses intended to be called by the defence on behalf of the accused were not allowed to be called by the Magistrate because they had been examined already and cross-examined as prosecution witnesses. It is not necessary for us in this case to decide these two points as we are satisfied that on the first ground the petitioners should succeed.
4. The order of commitment of the Magistrate is therefore set aside and the rule is made, absolute.
5. We would only wish to add that it means that up to the stage that the charge has been framed the proceedings are regular but after the charge had been framed all the rest of the order of commitment is set aside and the proceedings will continue from after the stage of the framing of the charge.
6. I agree.