1. In this case, it appears to ma that the order of commitment must be quashed. The case is one in which certain persons are said to have been entrusted with certain bales of cotton yarn. It is said that, having been entrusted with these goods they have, in fact, committed criminal breach of trust by entering into a conspiracy with certain other people to make away with the goods. We are concerned with two matters. One is a rule obtained by the accused Nanooram and the other is an application for a rule by the accused Piramul and Gobardhan Das. So far as Nanooram is concerned, we have had discussed before us the question, whether, on any of the charges on which the Magistrate has committed the accused, there is prima facie evidence to justify the order of commitment; and taking the evidence carefully as recorded, we have come to the conclusion that we are not prepared to say that there is insufficient evidence to justify that commitment.
2. Then there comes another objection to this commitment order, which applies to the accused in both the cases before us, because it is said that, if the case of Nanooram is somewhat touch and go as to whether there is any evidence to warrant a commitment at all, both his case and the case of the other petitioner cannot be judged at the present stage for the purpose of showing whether the commitment is right or wrong, because the course taken by the Magistrate has deprived all these petitioners of their right, first of all, to cross-examine the prosecution witnesses so as to show that there is no case for commitment and, secondly, to call any evidence that they might desire.
3. In my judgment, on the second ground the case is completely made out. It appears that this prosecution started first of all as a prosecution in an ordinary warrant case, but that the Magistrate made up his mind, in view of the suggestion that there was a case exclusively triable by the Court of Session, to deal with the case from the beginning as though it were to end in a commitment, and it is said that, at the time the Magistrate so decided, he explained that no prejudice would accrue to these petitioners, because, instead of calling upon them at once, as in a case that was going to be committed to cross-examine each witness as his evidence was given for the prosecution, he would permit counsel to reserve the cross-examination the idea being that, if it afterwards turned out that the Magistrate was not trying a warrant case in the ordinary course, counsel would then have an opportunity to cross-examine.
4. What happened in fact is this : The defence did not decline to cross-examine but from the Magistrate's own writing we find that the cross-examination was reserved. It could only be reserved with the Magistrate's permission and it is clear to my mind that the story in the petition before us is correct. The Magistrate himself says, as may well be true, that he has no recollection that he assured the defendant's advocate that the accuse would have an opportunity to cross-examine the witnesses. But he says:
I might have said so; but as the case is going to the High Court Session, I reject the defendants' prayer on that point.
5. With great respect to the Magistrate, if the Magistrate acted as he is said to have acted, he cannot possibly commit the case to the Sessions without keeping his promise. It is a clear right of the partia3 to cross-examine prosecution witnesses before the committing Court makes up its mind as to whether there is a case to be committed, la addition to that, there is the right to call evidence for the defence. Those rights given under Chap. 18 of the Code have in effect been taken away from these petitioners. In the same way, if this case were to be dealt with as a warrant case, it is evident that the accused would have the right to cross-examine, whether before or after the charges were framed. I am satisfied that the question whether there is sufficient evidence is a somewhat narrow question, a question in which there is some little difficulty. It is quite impossible for this Court to permit people to be committed to the Sessions, when the Magistrate fails to comply with the law, so as to see that the accused get an opportunity to satisfy him that there is no case which requires commitment. On that ground, the commitment of the petitioners cannot be supported. The commitment will be set aside and the cases must go bask to via tried in accordance with law. The defence must be given an opportunity to cross-examine the prosecution witnesses and to adduce any evidence they desire before there can be any question of a recommitment to the High Court. On the other hand, if, as a result of the evidence, the Magistrate does not any longer think it necessary to commit, he can proceed with the cases as warrant cases.
6. I agree.