J.N. Wazir, C.J.
1. This is a reference made by the Sessions Judge of Anantnag recommending that the order of commitment passed by the Additional District Magistrate, Anantnag, on 5th May, 1967 be quashed and that he be directed to proceed with the case according to law.
2. The facts which gave rise to this reference, briefly stated, are these:
3. The accused, 32 in number, were committed by the Additional District Magistrate, Anantnag, to stand their trial for offences under Sections 148, 395 and 397 read with Section 34 R.P.C. The case was started against the accused on the report of police Anantnag on 5th May, 1966. Hakeem Ghulam Hassan, the Additional District Magistrate, entertained the challan and treated it as a warrant case. On the basis of police documents he framed charges against all the accused and started recording evidence of the prosecution witnesses. He was transferred and Mr. Sharief-ud-Din took over from him as Additional District Magistrate. He having realised the procedural error committed by his predecessor committed the accused to the Court of Session without recording the evidence of the witnesses cited by the prosecution. The Sessions Judge has recommended that the committal order cannot be sustained on the ground that there were eye-witnesses cited by the prosecution and the Additional District Magistrate ought to have recorded the evidence of all those persons who had actually witnessed the commission of the alleged offence. He has further remarked that the Additional District Magistrate has committed a serious illegality in not complying with the provisions of Sub-section (4) of Section 207A, Criminal P.C. He has also observed that the attention of the Additional District Magistrate had not been invited to the provisions of Section 347, Criminal P.C. and therefore he had fallen into an error in committing the accused to Sessions.
4. This reference is supported by Mr. Qureshi appearing for the accused. The learned Advocate General has opposed the reference on the ground that the Magistrate was empowered under Section 207A, Criminal P.C. to commit the accused to Sessions without examining all the witnesses cited by the prosecution in support of the allegations against the accused. He has relied on : AIR1966Cal217 in which it is laid down:
It is optional with the prosecution to examine any witness before the committing Magistrate and if no such examination is held, the Magistrate on perusal of papers may exercise his discretion as to whether the accused should be committed to the Court of Session or not.
Section 207A, Criminal P.C. reads as under:
207A(1) When in any proceeding instituted on a police report, the Magistrate receives the report forwarded under Section 173, he shall, for the purpose of holding an inquiry under this section, fix a date which shall be a date not later than fourteen days from the date of the receipt of the report, unless the Magistrate, for reasons to be recorded, fixes any later date.
x x x x x x(4) The Magistrate shall then proceed to take the evidence of such persons, if any, as may be produced by the prosecution as witnesses to the actual commission of the offence alleged; and if the Magistrate is of opinion that it is necessary in the interest of justice to take the evidence of any one or more of the other witnesses for the prosecution, he may take such evidence also.x x x x x xx x x x x x
In the present case the prosecution had produced the eye-witnesses in regard to the occurrence but the Magistrate did not record their statements, and on the basis of the statement of the complainant framed charges against the accused and started recording the statements of the other prosecution witnesses. His successor having found that charges had already been framed against the accused and the case was triable by the Court of Session committed the accused to that Court. It is true that in a case filed on a police report the Magistrate need not examine all the witnesses who have to be examined in the Sessions Court but the witnesses produced by the prosecution who have actually seen the commission of the offence ought to be examined by the Magistrate. If eye-witnesses of the occurrence are not examined the accused will not know the evidence which he will have to meet in the Court of Session. In Kirpal Singh v. State of Uttar Pradesh : 1965CriLJ636 , it has been held:
Before the Code was amended by Act 26 of 1955 it was necessary for the Magistrate holding the enquiry to record the evidence of all the important witnesses. With a view to shorten delays in the proceeding preliminary to bringing the accused to trial, the Legislature has by enacting Section 207A conferred a discretion upon the Magistrate in the matter of examination of witnesses not produced by the prosecution. Exercise of that discretion must be judicial; it is not to be governed by any set rules or standards, but must be adjusted in the light of circumstances of the case.
The Magistrate is again not to be guided by the attitude of the prosecutor. It is the duty of the Magistrate to examine all such witnesses as may be produced by the prosecutor as witnesses to the actual commission of the offence alleged, but his duty does not end with such examination. He must apply his mind to the documents referred to in Section 173, and the testimony of witnesses, if any, produced by the prosecutor and examined, and consider whether in the interest of justice it is necessary to record the evidence of other witnesses.
In inquiries relating to charges for serious offences like murder, normally the Magistrate should insist upon the examination of the principal witnesses to the actual commission of the offence. Failure to examine the witnesses may be justified only in exceptional cases. A Magistrate failing to examine witnesses to the actual commission of the offence because they are not produced, without considering whether it is necessary in the interest of justice to examine such witness fails in the discharge of his duties.
It is clear from the above ruling that it is necessary for the Magistrate to examine witnesses to the actual commission of the offence alleged. He has a discretion in the matter of examination of witnesses not produced by the prosecution. He may consider it necessary in the interest of justice to record the evidence of other witnesses who may not be produced by the prosecution before him. In the present case the Magistrate without examining the eye-witnesses produced by the prosecution committed the accused to Sessions. The accused have been deprived of the knowledge of the evidence by which the prosecution intends to prove the offences alleged against them.
5. Under these circumstances I accept the reference made by the learned Sessions Judge, quash the order of commitment passed by the Magistrate on 5.5.1967 and direct that he will proceed with the case in accordance with law.