S.N. Bagchi, J.
1. Heard the learned Advocates for the State and the opposite parties and examined the records with their assistance.
2. The petitioner-accused is Minilal Shaw. The police after investigation submitted a charge sheet against him for the alleged commission of an offence punishable Under Section 302 of the Indian Penal Code. There was an enquiry by a learned Magistrate Under Section 207A of the Criminal P.C. The learned Magistrate perused the documents and examined five witnesses and heard the parties and committed the accused-petitioner to take his trial on the charge Under Section 302 of the Indian Penal Code before the Sessions Judge, Midnapore.
3. The accused-petitioner's grievance is that the charge sheeted four eye witnesses had not been examined by the learned Magistrate and that Buch failure to examine those eye witnesses by the learned Magistrate vitiated the proceedings of commitment and pretended abuse of the process of law. Dr. Mani Ghosh, Sarada Marathin, Sadananda Show and R. Suria Rao are witnesses in the charge sheet. The learned Magistrate, who examined five witnesses, while discussing the evidence observed as follows ;
Prosecution has examined five witnesses in this case. All the witnesses identified the acoused Munilal and spoke about the sound of gun shot and flash of fire from the hand of Munilal which caused death to Birjan Show. The prima facie case Under Section 302, IPC against accused Munilal has been well established......
4. The live witnesses examined are prima facie eye witnesses. It may be that the other four witnesses are also eye witnesses. Not only at the enquiry stage but also at the stage of trial the prosecution is not bound by law to examine all the eye witnesses. What the law has cast on the prosecution is the duty that the material witnesses should be examined and failure to examine the material witnesses and to explain for their non-examination only raises a presumption Under Section 114(g) of the Indian Evidence Act. Material witnesses are those who unfold a part of the prosecution story which has not been unfolded by other witnesses examined. Five of the nine alleged eye witnesses, according to the prosecution, have unfolded the material part of the prosecution story upon which the prosecution relies and to avoid duplication of evidence through other four eye witnesees at the commitment stage, the prosecution had used its discretion in examining five of the nine material prosecution witnesses- Therefore, presumption Under Section 114(g) of the Indian Evidence Act, adversely against the prosecution, can hardly be raised at this stage (Malak Khan v. Emperor , Habeed Mohammad v. State of Hyderabad, AIB 1954 SO 51). Sub-section (4) of Section 207A of the Criminal P.C., reads as follows:-
The Magistrate shall then proceed to take the evidence of such persona, if any, as may be produced by the prosecution as witnesses to the actual commission of the offence alleged....
Law, therefore, permits prosecution at the commitment stage to produce such number of its prosecution witnesses as to the actual commission of the offence as it may think fit in its discretion. In the present case, therefore, the prosecution by examining five of the nine alleged eye witnesses to the occurrence cannot '' be said to have exercised its discretion illegally thereby prejudicing the acoused at the commitment stage. Non-examination of all the alleged witnesses to the actual commission of the offence, but examination of some of all such witnesses would not be either illegal or irregular or violativa of the directions given in Sub-section (4) of Section 207A of the Criminal P.C. The learned Magistrate at the stage of commitment exercised his discretion in examining five out of the nine witnesses to the actual commission of the offence alleged. He acted perfectly within the ambit of his judicial discretion duly exercised in the circumstances of the present case. Therefore, there has not been either any illegality nor any irregularity ' nor any abuse of the process of the Court.
5. On a literal construction of Section 213 and 215 of the Criminal P.C., it would appear that a commitment Under Section 207A (10) of the Oode cannot be quashed by the High Court under.S. 215. If Section 215 of the Criminal P.C., cannot strictly be invoked in quashing the commitment, the High Court may in exercise of its powers Under Section 561Aof the Criminal P.C., quash the commitment, where in the commitment proceeding, there has been any abuse of the process of law or violation of law which should be remedied to secure the ends of justice. A Division Bench of the Mysore High Court in the case of M. Pavalappa v. State of Mysore, reported in A.I.R. 1957 Mys 61 at para 3 of the report, while considering Sections 485 and 215 of the Criminal P.C., in relation to the question of quashing the commitment, made Under Section 207-A, Sub-section (10) of the code observed:-
We do not however think it necessary to go further into this question since we feel satisfied that if Section 215 is strictly in applicable we must in this case exercise our powers Under Section 561.A of the Criminal P.C.
In the case before the Mysore High Court, the learned Magistrate looked into the F.I.R. and other documents furnished by the prosecution and made the committal order which was challenged, without examining any of the eye witnesses to the actual occurrence, since they were not produced by the prosecution for examination. But in the present case, the prosecution produced five of the nine alleged eye witnesses to the actual commission of the offence and those witnesses were examined in full. So, the learned Magistrate, in exercise of his discretion, rightly found that upon the evidence of five out of the nine alleged eye witnesses to the alleged commission of the offence a prima facie case was established against the petitioner justifying an order of commitment of the petitioner on the charge framed for trial before the Court of Session.
6. Section 561A of the Criminal P.C., confers no new powers on the High Court but it merely safe-guards all the existing inherent powers possessed by the Court necessary to secure the ends of justice, (State of U. P. v. Mohammad Naim : 2SCR363 , Raghubir v. State of Bihar : 1964CriLJ1 .
7. I do not consider in this case that this Court can exercise its inherent power in quashing the order of commitment passed by the learned Magistrate since the learned Magistrate did not violate any law nor did abuse any process of the Court nor did overstep his jurisdiction while passing the order of commitment against the present petitioner.' Accordingly, I do not find any reason for interference with the commitment order, within the scope of Section 561.A of the Criminal P.C., passed by the learned Magistrate.
8. The application is, therefore, rejected and the Rule is discharged. The learned Sessions Judge will now proceed with the trial according to law.