Amaresh Roy, J.
1. This Rule was issued upon an application made by one of the accused persons in a criminal case pending before a Magistrate at Sealdah in which charges have been framed against three accused persons for alleged offences under Sections 147, 323 and 341 of the Indian Penal Code. The prayer in the Rule is for quashing the charges framed against the petitioner Jyotijiban Ghosh. It has to be observed that, in the certified copy of the charge Tiled with the petition in this Court, the name of Jyotijiban Ghosh has been wrongly mentioned as Jyotijiban Shah. That bespeaks of carelessness with which the copy was compared and certified to be a true copy in the Magistrate's Court.
2. Appearing in support of the Rule, the learned Advocate Mr. Nikhil Chandra Talukdar has urged that the case having been instituted upon a police report the procedure under Section 251A of the Code of Criminal Procedure was followed and, for framing the charges under the provisions of Section 251A (3), the materials before the Magistrate were only the documents, copies of which had been given under the provisions of Section 173(4) of the Code of Criminal Procedure, that is, the First Information Report and the statements recorded by the police during investigation under Sec. 161 of the Code of Criminal Procedure. According to Mr. Talukdar, not only the petitioner Jyotijiban Ghosh has not been implicated in the alleged offences in any of those documents by name, but also, according to the learned Advocate for the petitioner, there is nothing that would go to connect this petitioner with those offences. Mr. Talukdar has very fairly pointed out that in those documents, it has been mentioned that there were five or six persons, other man those named, as having taken part in the acts constituting the offences. It was said in the First information Report and by the other witnesses that they would be able to identify those persons not named. But Mr. Tatukdar contended that inasmuch as there has been no Test identification Parade held, there would be no corroboration at an at the trial of any identification in Court, even if such evidence would be available. Therefore, Mr. Tatukdar contends that, there is no material at all that could nave enabled the learned Magistrate to frame the charges against the petitioner Jyotijiban Ghosh. In pursuing this contention, Mr. Talukdar has relied on the decisions of this court holding that mere identification in Court at the trial is of no value at all unless such evidence is corroborated by contemporaneous evidence or at least corroboration by proper identification at Test Identification Parade.
3. On behalf of the State in opposing the Rule, the learned Advocate Mr. Jitendra Mohan Banerjee has contended that it is not correct to say that there was no material to Implicate the petitioner Jyotijiban Ghosh in the alleged offences, because there is material to show that this accused person was arrested at the place of occurrence, during the occurrence itself, by the police officer who arrived there on information even before the formal First Information Report was recorded and any statement under Section 161 OT the Code of Criminal Procedure was recorded. This material, according to Mr. Banerjee, would be provided by the investigating Officer as a witness in the trial and that would, besides being direct evidence implicating the petitioner in the alleged offences, would also provide the corroboration in support of any identification in Court that the other witnesses may make.
4. In reply to this contention of Mr. Banerjee, Mr. Nikhil Talukdar points out that no statement of the Investigating Police Officer having been supplied to the defence under Section 173(4) of the Code of Criminal Procedure, the material relied on by Mr. Banerjee could only be gathered from the Police Diary kept under Section 172 of the Code of Criminal Procedure. If the Magistrate drew upon a material in-that case diary that would be an illegality, according to his contention, because it is settled law that within the frame work of Section 251-A of the Code of Criminal Procedure, the Magistrate was not entitled to found a charge on the material in the case diary. As an authority for this proposition, Mr. Talukdar has relied on the Division Bench decision of this Court in the case or Noor Mohammad v. The State, : AIR1959Cal276 . Mr. Talukdar has also argued that, besides the documents, copies of which have been given under Section 1/3(4),nothing else is available to the learned Magistrate at the stage of framing the charge under Section 251A (3) of the Code of Criminal Procedure. Therefore, a mere contemplation that there may appear some evidence at the trial that may implicate and establish the identity of a particular accused is not enough material for framing the charge against the particular accused at that stage.
5. The point of law sought to be raised by Mr. Talukdar is of much subtlety no doubt. But for coming to a proper decision on the point, the provisions of Section 251A (3) or the Code of Criminal Procedure has to be carefully examined. That sub-section provides:
'If, upon such documents being considered, such examination, if any, being made and the prosecution and the accused being given an opportunity of being heard, me Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try, and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.'
From this language it appears clear that for framing me charges, what is necessary is that 'The Magistrate is or opinion that there is ground for presuming that the accused has committed an offence. .....' and for the purpose orentertaining that opinion not only the documents have to be considered but the prosecution and the accused nave to be heard. Hearing granted to the prosecution is, there-fore, an integral part of the duty of the Magistrate at that stage. If by such hearing, the Magistrate is satisfied about the prospect of some evidence, which, though not appearing in the documents of which copies have been given under Section 173(4) of the Code of Criminal procedure, but would reasonably be expected to be produced at the trial, may lend support to some materials appearing in any such document, that may very well provide the Magistrate Dasis for being of opinion that there is ground for presuming that the accused has committed an offence, that would be enough for framing the charge. It is not necessary for the Magistrate to arrive at any definite finding nor has no to limit his considerations to any 'legal evidence' or even 'evidence' proper, because none such is available at that stage. It has been held by a Division Bench of this Court that besides the persons whose statements under Section 161 of Code of Criminal Procedure have been furnished to the defence under Section 173(4), other persons can be examined by the Magistrate at the trial. That was the decision in the case of Jhagru Tewari v. State of West Bengal, : AIR1959Cal176 which also referred to another unreported decision in Criminal Revision Case No. 640 or 1956, Pearilal Shaw v. The State. Therefore, 1 do not see any illegality if the Magistrate relied on the submissions made by prosecution during hearing at the stage of Section 251-A (3) of the Code of Criminal Procedure, that identification, basis of which is to be found in the First Information Report, will be supported by other evidence at the trial. For that purpose, looking into the Police Diary need not necessarily be resorted to. In the present case, neither in me order of the learned Magistrate framing the charges nor in his explanation submitted to this Court in answer to the Rule, there is anything to show that the learned Magistrate drew upon materials from the case diary for framing me charge. Even if the learned Magistrate did so for the purpose of ascertaining the reliability of the submission made on behalf of the prosecution above mentioned, that would not be founding the charge upon the police diary, nor even to be influenced by the case diary. In that event.case diary has only afforded an aid to the Court and no more. The decision reported in : AIR1959Cal276 relied on by Mr. Talukdar no doubt Held;
'Having examined the impugned orders, we are of the view that the learned Magistrate allowed himself to be influenced by the case diary in framing the charges concerned. Under Section 251-A the Court is not permitted to found a charge upon documents other than those referred to in Section 173.'
But their Lordships in the same judgment also held
'Section 251A, however, does not preclude a Court fromperusing case diaries. This is provided by Section 172. Sub-section (2) of Section 172 expressly provides that the materials to be found in police diaries are not to be treated as evidence in the case, but may, nevertheless, afford an aid to me Court in any enquiry or trial.'
Regarding that decision of the Division Bench, N.K. Sen, J. in his Lordship's judgment in the Full Bench decision reported in : AIR1962Cal135 (FB), A. K. Roy v. State of West Bengal, observed:
'So far as police diaries are concerned. Section 1/2(2) of the Code prohibits their use as evidence in Court in the case of : AIR1959Cal276 Mitter, J. sitting with Debabrata Mookerjee, J. held that for the purpose of framing of the charge as provided under Section 251A of the Code, the Court is entitled to consider only the documents referred to in Section 173 but their Lordships nowhere said that for the purpose of examining the correctness or otherwise of a final report not containing necessary details, a Magistrate was precluded from looking at the police diary. The Magistrate was not of course to use the same as evidence nor to frame a charge thereon.'
That Full Bench by majority decision held that the case Diary could be looked into by the Magistrate at the stage of taking cognizance under Section 190 of the Code of Criminal Procedure if the report under Section 173 does not afford sufficient details.
6. In my view, for the same reasons mere is nothing illegal if the Magistrate is afforded aid by materials in the case diary at the stage of framing charge under Section 251-A (3) of the Code of Criminal Procedure though he cannot found the charge on material in case diary alone.
7. In the present case, there is nothing to snow, as 1 have already said, that the charge has been tound on anything other than documents referred to in Section 1/3 and if the Magistrate had looked into the police diary mat was not for treating anything in it as 'evidence' but only for obtaining aid to understand what was submitted to him by the prosecution at the hearing. Therefore, there has been no illegality in framing the charge against the petitioner in this case.
8. Mr. Talukdar also advanced arguments on the merits and contended that charges ought not to have been framed against the petitioner. I refrain from detailed discussion of all the materials because in my view that would not be proper at this stage before the materials are available in the form of evidence at the latter stage of trial. But it is enough to say that the materials legally available to the learned Magistrate at the stage of framing the charge in this case were sufficient to provide the basis for the Magistrate at the present stage to be of the opinion that there is ground for presuming that the petitioner has committed the offences charged against him. All the contentions or Mr. Talukdar fail.
9. The Rule is, therefore, discharged.
10. Let the records be sent down to the court below without delay.