J.P. Mitter, J.
1. This is a petition for setting aside an order of commitment made by Sri A. Bagchi, Magistrate, First Class, Contai.
2. It appears that on evidence on behalf of the prosecution being concluded, the learned Magistrate framed a charge under Sections 302/120B, Penal Code, and then, instead of complying with the provisions of Sections 211 and 212, Criminal P. C., proceeded to make an order of commitment, as provided under the first part of Section 213, Criminal P. C. After the order of commitment, the learned Magistrate called upon the accused to submit a list of witnesses for the defence.
3. The procedure adopted by the learned Magistrate was, in our view, in disregard of the provisions laid down in the Code. See --'Sripati Duley v. State', : AIR1953Cal10 (A). Mr. N. K. Basu appearing for the State has drawn our attention to a form of charge in Schedule V to the Code of Criminal Procedure and has argued that the procedure followed by the learned Magistrate made no difference to the position of the accused in such an enquiry. In our view, there are good grounds why the procedure laid down in the Code should be followed in the order in which the relative provisions appear. True, under Section 210 the Magistrate has to frame a charge provided there are sufficient grounds for committing the accused. He is nevertheless required not merely to give an accused the opportunity of furnishing a list of witnesses, but himself to scrutinise the list and if so minded, to examine such of the witnesses for the defence as he may wish to examine, and then to come to a definite conclusion as to whether the accused is to be committed for trial. Sub-section (2) of Section 213 provides :
'If the Magistrate, after hearing the witnesses for the defence, is satisfied that there are not sufficient grounds for committing the accused, he may cancel the charge and discharge the accused.'
This, in our view, is a salutary provision and should not be departed from.
4. In the result, we must set aside the order of commitment made by the learned Magistrate and order that on this case being sent back to him, he will give a fresh opportunity to the accused to give a list of witnesses for the defence under Section 211, Criminal P. C. and that he will thereafter follow the procedure laid down in Sections 212 and 213, Criminal P. C.
5. The Rule is accordingly disposed of.
6. I agree.