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State Vs. Afzal Sheikh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1967CriLJ1718
AppellantState
RespondentAfzal Sheikh
Cases ReferredIn Kirpal Singh v. State of Uttar Pradesh
Excerpt:
- .....the commitment order that the learned magistrate has considered the documentary as well as other evidence produced before him by the prosecution and that it was after considering oral and documentary evidence the accused should have been committed to the sessions. that has not been done. with these observations he has made a reference that the commitment order be quashed. i do not see any valid reason for quashing the commitment order passed by the committing magistrate.the magistrate in a committal proceeding is entitled to examine and weigh the evidence not for the purpose of deciding whether it would result in conviction but with a view to see whether the evidence is such as would lead to an expectation of a probable conviction. he has to consider the evidence in order to see.....
Judgment:

J.N. Wazib, C.J.

1. This is a reference made by the Sessions Judge, Baramulla, recommending that the order passed by the Additional District Magistrate committing the accused to the Sessions be vacated in view of the fact that the Committing Magistrate had not recorded the statements of all the eye-witnesses of the occurrence and therefore the commitment order was bad in law.

2. I have gone through the commitment order passed by the Additional District Magistrate on the 4-12.1965. Four eye-witnesses were produced by the prosecution and their statements were recorded by the Magistrate and it was stated by the prosecution that the remaining witnesses will be produced in the Sessions Court. The learned Committing Magistrate remarked in his order that the four eye-witnesses strongly support the prosecution story and also had given a resume of the statements of these witnesses implicating the accused of the offence under Sections 366 and 376, R. P. C. The accused was committed to Sessions and the learned Sessions Judge has stated in his order that the committing Magistrate had written a telegraphic order of commitment and that he had not given reasons for committing the accused after discussing the evidence on the record. He has further remarked that there is no indication in the commitment order that the learned Magistrate has considered the documentary as well as other evidence produced before him by the prosecution and that it was after considering oral and documentary evidence the accused should have been committed to the Sessions. That has not been done. With these observations he has made a reference that the commitment order be quashed. I do not see any valid reason for quashing the commitment order passed by the committing Magistrate.

The Magistrate in a committal proceeding is entitled to examine and weigh the evidence not for the purpose of deciding whether it would result in conviction but with a view to see whether the evidence is such as would lead to an expectation of a probable conviction. He has to consider the evidence in order to see whether there is a prima facie case which would justify committal to the Court of Session. Four eye. witnesses were produced by the prosecution before the committing Magistrate, and be has recorded their statements. It was stated before the Magistrate on behalf of the prosecution that the remaining eye-witnesses will be produced in the trial. The Magistrate has stated in his order that the prosecution story is corroborated by the evidence of the eye-witnesses produced before him. He has further given in nut shell what the eye-witnesses stated before him. In my opinion that was quite sufficient to justify committal of the accused to the Court of Sessions. In Shri Bam v. State of Maharashtra : [1961]2SCR890 their Lordships of the Supreme Court have observed as under:

Under Section 207A in a proceeding instituted on a police report, the Magistrate is bound to take evidence of only such eye-witnesses as are actually produced by the prosecution in Court. The Magistrate if he is of opinion that it is in the interest of justice to take evidence, whether of eye-witnesses not produced by the prosecution or others, has a duty to do so. If the Magistrate is not of that opinion and if the prosecution has not examined any eye-witnesses, he has jurisdiction to discharge or commit the accused to Sessions merely on the basis of documents referred to in Section 173, The discretion of the Magistrate under Sub-section (4) is a judicial discretion and therefore, in appropriate cases the order of discharge or committal, as the case may be is liable to be set aside by a superior Court.

Under Sub-section (4) of Section 207A, Criminal P. C. the Magistrate has been given discretion to examine any of the witnesses whom the prosecution has not produced if he thinks it necessary in the interest of justice to do so. But if he finds that it is not necessary to examine these witnesses he is competent to commit or discharge the accused on the basis of the evidence produced by the prosecution before him and after examining the documents referred to in Section 173, Criminal P. 0. In the instant case as pointed out above the committing Magistrate passed the commitment order on the basis of the statements of the eyewitnesses who were produced before him by the police and the commitment order, therefore, does not suffer from any infirmity. In Kirpal Singh v. State of Uttar Pradesh : 1965CriLJ636 it has been held as follows:

Before the Code was amended by Act 26 of 1955 it was necessary for the Magistrate holding the inquiry to record the evidence of all the important witnesses. With a view to shorten delays in the proceedings 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 prosecutor. 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 3. 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.

The learned Sessions Judge has relied upon this ruling and has observed that the offence for which the accused was committed was a serious one and the Magistrate ought to have examined all the witnesses cited by the prosecution as eyewitnesses. The learned Sessions Judge has not taken notice of the observation made by their Lordships that failure to examine the witnesses may be justified only in exceptional cases. In the instant case four eye-witnesses were examined by the Magistrate and he has stated that the remaining eye-witnesses who have not been produced would be examined in the Sessions Court. He has, therefore, exercised his discretion judicially and no interference with that discretion was justified. I accordingly reject the reference made by the Sessions Judge and maintain the order of commitment passed by the Additional District Magistrate.


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