Brett and Ryves, JJ.
1. The present application is made to us under Section 215 of the Criminal Procedure Code praying that we will quash the commitment made by the Chief Presidency Magistrate to the High Court of the petitioner, Phanindra Nath Mitra, on a charge under Section 124A of the Indian Penal Code. The grounds, on which we are asked to quash the commitment are, that the Presidency Magistrate refused to allow the petitioner to cross-examine the witnesses examined for the prosecution or to cite and examine witnesses in his defence, it being contended that the provisions of Section 208 of the Criminal Procedure Code are imperative, and that the Magistrate was in law bound to allow the petitioner these privileges It seems that, while the witnesses for the prosecution were being cited and examined, no attempt was made by the accused to cross-examine them, and that the application to cross-examine those witnesses and to cite witnesses for the defence was made to the Presidency Magistrate after the prosecution had closed its case, and the Magistrate had decided to commit the petitioner for trial to the High Court
2. The present application is, so far as we are aware, the first of its kind, which has been made to this Court in the exercise of its Ordinary Appellate Jurisdiction, and it seems doubtful to one of us whether, in the exercise of that jurisdiction, we have power to quash a commitment made to this Court for trial under its Ordinary Original Criminal Jurisdiction. The practice in somewhat similar cases has been to apply to the Judge exercising the Original Criminal Jurisdiction of the Court. The question of jurisdiction is one of considerable importance, but as the present application is urgent, we do not propose to deal with it, as we hold that the application must fail on the merits.
3. The question, which is raised by the application, is whether Section 347 of the Criminal Procedure Code is to be read as subject to the provisions of Section 208 of the Criminal Procedure Code, so as to render it imperative on a Magistrate, after he has decided to commit an accused for trial to the High Court, to allow him to cross-examine the witness for the prosecution and to call witnesses in his defence. In our opinion the question 'must be answered in the negative, and in this view we are supported by a decision of the Judges of the Bombay High Court in the case of In re Clive Durant (1898) Ratanlal's Unrep. Cr. Ca. p. 975. Section 347 distinctly lays down that, when a Magistrate has made up his mind to commit an accused for trial,' he shall stop further proceedings.' The section occurs in Chapter XXIV, which lays down the general provisions as to enquiries and trials, and its provisions cannot be held to be governed by the provisions in Chapter XVIII of the Code, which lay down the procedure to be ordinarily followed up to the time when the Magistrate decides to commit.
4. The attention of the learned Judges of the Allahabad Court, who decided the cases of Queen-Empress v. Ahmad (1898) I.L.R. 20 All. 264 and Emperor v. Muhammad Hadi (1903) I.L.R. 26 All. 177, to which we have been referred, does not appear to have been invited to the provisions of Section 347 of the Criminal Procedure Code and the case of Queen-Empress v. Sagal Samba Sajao (1893) I.L.R. 21 Calc. 642 is clearly distinguishable from the present, as in that case the point determined was that the depositions of witnesses, whom the accused had not been allowed to cross-examine before the committing Magistrate, were not admissible in evidence in the Sessions Court,
5. We decline, therefore, to interfere and dismiss the application.