RAJASTHAN HIGH COURT

                   Ghisa

                   Vs.

                   State (Rajasthan)

                      Criminal Ref. No. 75 of 1959
                   (I.N. Modi and D.M. Bhandari, JJ.)

                   02.06.1959

                   JUDGMENT

D.M. Bhandari, J.

1. This is a reference by the Additional Sessions Judge. Tonk, recommending that the
order of commitment of the Munsiff Magistrate, First Class, Malpura dated 16-12-
1957 committing the accused Gheesa and seven others under Sections 307, 148 and
307/149 I.P.C. be set aside.

2. According to the challan, there were eleven eye-witnesses of the incident out of
which the prosecution produced only file such witnesses. The remaining eye-witnesses
were neither produced by the prosecution, nor were examined by the learned
Magistrate. The learned Additional Sessions Judge is of the opinion that under Section
207-A Sub-Section (4), it was the duty of the committing Magistrate to take the
evidence of all the eyewitnesses and as admittedly he failed to do so, the commitment
order was bad and illegal. He has therefore recommended that the committing order be
set aside and the case be remanded to the committing Magistrate with a direction to
examine all the witnesses to the actual commission of the crime whom the prosecution
intends to produce at the trial and then to proceed according to law. This reference
came up for hearing before me sifting as a Single Judge and I referred this to a
Division Bench as there was considerable divergence of opinion on the point involved
in the case. Notices were issued to the accused and the Government Advocate, but no
one appeared on behalf of the accused. We heard the learned Government Advocate,
who supported the order of commitment passed by the learned Magistrate.
3. The main point for determination in this reference is, whether under sub-section (4)
of Section 207-A Criminal Procedure Code, it was incumbent on the committing
Magistrate to take the evidence of all the eye-witnesses, and as he has failed to do so,
the order of commitment is illegal and the commitment should be set aside under our
revisions jurisdiction.

4. Sub-Section (4) to Section 207-A relates to the procedure adopted in committal
proceedings on a Police report. Sub-Section (1) provides that the Magistrate shall fix a
date for the purpose of holding an inquiry under that section. Sub-Section (2) provides
that if at any time before such date, the officer conducting the prosecution, applies to
the Magistrate to issue a process to compel the attendance of any witness, or the
production of any document or thing, the Magistrate shall issue such process, unless
he deems it unnecessary to do so. Sub-Section (3) provides that the Magistrate shall
satisfy himself that the documents referred to in Section 173; have been furnished to
the accused, and if such documents, or any of them have not1 been furnished, he shall
cause them to be so furnished. Then comes Sub-Section (4) which runs, as follows :

       "'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
       interests of justice to take the evidence of any one or more of the other
       witnesses for the prosecution he may take such evidence also."

Sub-Section (5) provides that the accused shall be at liberty to cross-examine the
witnesses examined under Sub-Section (4), Sub-Section (6) relates to the power of
discharge in case the Magistrate is of opinion that the evidence recorded by him and
the documents disclose no grounds for committing the accused person for trial. Sub-
Section (7) deals with the framing of a charge. Then follow the other provisions which
are not very material for the purpose of deciding the point at issue.

5. Sub-Section (4) is divided in two parts. The first part makes it the duty of the
Magistrate to take the evidence of such persons as may be produced by the
prosecution as witnesses to the actual commission of the offence alleged. The second
part grants a, discretion to the Magistrate to take the evidence of any one or more of
the other witnesses for the prosecution, if he is of opinion that it is necessary in the
interests of justice to do so. The first part of Sub-Section (4) has been considered by
various High Courts and has given rise to a conflict of opinion in interpreting it. These
cases are :

       (i) State v. Govind Thampi Bhaskaran Thampi, 2
       (ii) State v. Hamratan Bhudhan,3
       (iii) Krishna v. State of Mysore, 4
       (iv) M. Pavalappa v. State of Mysore, 5
       (v) State v. Yasin, 6
       (vi) Manik Chand Chowdhury v. State, 7
       (vii) A. Ishaque v. State, (viii) In re Kotta Narayan, 8
       (ix) State v. Anadi Betenkar, 9

6. In this Court, Sub-Section (4) of Section 207-A came up for consideration in State
v. Birda, 10 was a Division Bench case. The point involved in that case was whether
the Magistrate should record evidence of anyone or more of the prosecution witnesses
in case where there were no eye-witnesses. The Court was of the opinion that the only
proper way in which the Magistrate could exercise judicial discretion would be to hold
that the interests of justice required that the evidence other than that of eye-witnesses
must be recorded to establish the connection of the accused with the crime, and that
being so, he must proceed to record such evidence and thereafter exercise the powers
vested in him under Sub-Sections (6) and (7) of Section 207-A Criminal Procedure
Code Their Lordships observed that in case there were eye-witnesses, a question may
arise whether the prosecution should produce all the eye-witnesses, or it may produce
some of them before the committing Magistrate.' Their Lordships did not express any
opinion on this point, as that point was not directly raised in the case before them, but
nevertheless pointed out that the prosecution should not hold back eye-witnesses to the
actual commission of the offence alleged at their sweet will and pleasure, and in any
case, they would be running a grave risk if they later produce such witnesses air the
trial whom they have not produced before the committing Magistrate.' In the present
case, the question, whether the Magistrate is to take evidence of ail the eye-witnesses,
is directly involved and we are called upon to express final opinion on this point. 7. I
may at this stage take note of the cases of the various High Courts referred to above.

8. In AIR 1957 Travencore Cochin 29 the view taken was that the words 'if any' relate
to the expression "witnesses to the actual commission of the offence alleged", and that
the word 'may' should be construed as equivalent to 'shall' as the statute authorizes the
doing of a thing for the sake of justice or for the public good. Their Lordships also
noticed the history of the enactment of Section 207-A.

9. In AIR 1957 Madhya Bharat 7 the view taken is that ­

       "The first part of Sub-Section (4) of Section 207-A lays down that in the event
       of there being persons who have witnessed the actual commission of the alleged
       offence, the prosecution shall produce them and the committing Magistrate shall
       record their evidence."

This interpretation, that the word 'may' used in the first part of the Sub-Section shall
be construed as 'shall', has been arrived at on the principle that where a statute directs
the doing of a tiling for the sake of justice and public good, the word 'may' has a
compulsory force.

10. In AIR 1957 Mysore 5 the view expressed is that ­
       "......what is obligatory on the Magistrate is the recording of the evidence of
       witnesses to the actual occurrence, and if there are no witnesses to speak to the
       actual commission of the offence, the Magistrate is not bound to examine any
       other witness or witnesses."

In that case, it appears that there were no eyewitnesses and the committing Magistrate
had committed the accused on the perusal of the documents referred to in Section 173
Criminal Procedure Code and produced by the prosecution. As such, the first part of
Sub-Section (4) did not come up for interpretation. Padamnabhiah, J. of the Mysore
High Court, who delivered the judgment, was of the opinion that the second part of the
sub-section granted discretion to the Magistrate and therefore the omission to examine
any other witness or witnesses suo motu could not be such as to vitiate the order of
committal. This view is contrary to the view taken by this Court in AIR 1957
Rajasthan 318, where it has been pointed out that the proper way to exercise the
discretion is to record the statements of other witnesses on the point, otherwise the
committing Magistrate will be failing in his duty and would not be in a position to
extracts his power vested in him under Sub-Sections (6) and (7) properly.

11. The other case of Mysore High Court in AIR 1957 Mysore fit, was a case in which
there were eye-witnesses and the first part of Sub-Section (4) came up for
consideration Their Lordships took the view that there was some warrant on a strictly
grammatical construction on the wording of the section to hold that it was entirely
open to the prosecution to produce or not to produce eye-witnesses of the occurrence
for giving evidence, yet that could not have been the intention of the Legislature.
Their Lordships further took assistance from the second part of Sub-Section which
was interpreted as meaning that the Magistrate could, if he thought it necessary,
compel the production of witnesses other than eye-witnesses while under the first part
he could examine them and it was thought to be an illogical position that he could not
call upon the prosecution to produce eye-witnesses.
12. In re Kanjan Raghavan, 11, the view expressed was that -

       "The wording of Sub-Section (4) gives no room for doubt that the Magistrate
       conducting the inquiry should take the evidence of all the persons produced by
       the prosecution as witnesses to the actual commission of the offence alleged aid
       that he has no discretion to dispense with the examination of any of them."

For taking this view, reliance was placed on 1956 Ker. LT 550 : ( AIR 1957
Travencore Cochin 29), AIR 1957 Madhya Bharat 7 and AIR 1957 Mysore 5.
13. Sub-Section (4) came up for consideration before a Division Bench of Calcutta
Rich Court in AIR 1958 Calcutta 324. Chakravartti, CJ. who delivered the judgment
of the Bench first pointed out that it was not necessary for the purpose of decision in
that case to deal with the interpretation of Sub-Section (4) of Section 207-A. but he
gave his views as these were points of great importance. He disagreed with the
Travencore Cochin and Madhya Bharat High Courts in constructing the word "may"
as 'shall' in the first part of that sub-section. In his view, the first part of the Sub-
Section laid an obligation but that was only an obligation on a magistrate to examine
such witnesses of the actual commission of the offence alleged as the prosecution may
produce before him. The second part laid no obligation at all but only conferred a
power and discretion on the Magistrate to examine on his own accord witnesses other
than those examined by the prosecution if he considered to be in the interests of justice
to do so. In the opinion of their Lordships of the Calcutta High Court, the words
'evidence of such persons, if any, as may be produced by the prosecution as witnesses
of the actual offence alleged' do not purport to confer any power on the prosecution to
produce witnesses of the kind mentioned, but describe the witnesses by the fact of
their production by the prosecution. It was further pointed out that in that context, the
word 'may' cannot be construed as 'shall' because the word 'may' was not used with a
verb which confers a power on a certain person and enables or permits him to exercise
it but was used with a verb in the passive voice which occurs in an adjectival phrase,
describing a fact and occurs in conjunction with the other words which completely
exclude implications of an obligation. It was further pointed out that if the Sub-section
had said, "the prosecution may produce for examination person, who were witnesses
of the actual commission of the offence alleged and the Magistrate shall take their
evidence", there might to be room for a contention that, in the context, the word 'may'
ought to be read as 'shall' or 'must', as advancement of justice was intended. The view
of the Travancore Cochin High Court that the words 'if any' relate to the expression
"which were witnesses of the actual commission of the offence A alleged" was also
adversely commented upon, and lit was observed that however closely the section may
be read, the words cannot be taken as qualifying anything but "such persons as may be
produced", the meaning being that the Magistrate must take the evidence of such
persons as may be produced by the prosecution as witnesses of the actual commission
of the offence, if any persons are produced by them as such witnesses. The remarks of
the Madhya Bharat High Court, that "if the first part of Section 207-A(4) be not
construed as making it obligatory on the prosecution to produce all their witnesses of
the actual commission of the offence, they may not examine any of the witnesses at
all, and that in such an event very important evidence would be allowed to slip
through the fingers of the Magistrate and that the commitment proceedings would be
reduced to farce" were also examined. It was observed that to meet such a
contingency, the Magistrate has been given power, by the second part of the sub-
section, to examine witnesses for himself, if he finds it necessary in the interests of
justice to do so. On the second part of Sub-Section (4), it was pointed out that the
Magistrate must consider after the prosecution has closed their evidence and equally
in a case where the prosecution have not produced any witness at all, whether it is
necessary in the interests of justice that he should examine some or some other
prosecution witnesses for himself. It was also observed that it cannot be said that
where the prosecution have not produced some of their witnesses of the actual
commission of the offence alleged, the second, part of Section 207-A(4) requires the
Magistrate, as a matter of law, to examine them on his own account. It was also
observed that" "Other witnesses for the prosecution" obviously mean witnesses for the
prosecution named, but not examined by them whether they were witnesses of the
actual commission of the offence or not. The same position was taken up by the
Calcutta High Court in another case in AIR 1958 Calcutta 341.

14. A Single Judge of the Andhra Pradesh High Court in AIR 1958 Andhra Pradesh
851, has held that the Magistrate has a discretion vested in him, to be satisfied that a
prima facie case is made out to commit the accused to Sessions after the examination
of the witnesses produced by the prosecution, and not necessarily all the witnesses
relied on by the prosecution.

15. In the Orissa High Court, Narasimham, C.J. sitting as a Single Judge held in AIR
1958 Orissa 241 that is there are witnesses to the actual commission of the offence,
the Magistrate has no option but to examine them before commencing the enquiry. He
followed the cases of Travancore Cochin, Madhya Bharat and Mysore High Courts
referred to above.

16. The latest decision on this point is a Division Bench decision of the Allahabad
High Court in AIR 1958 Allahabad 861. It was held that under the first part of Sub-
Section (4), the initiative is entirely with the prosecution and that under that part if the
prosecution does not examine any eyewitnesses or examine only some of them, the
Magistrate cannot compel the examination of the remaining witnesses.
It was also pointed out that the word 'other used in connection with the expression
'witnesses, for the prosecution' means all those witnesses direct or otherwise on whose
testimony, the prosecution propose to base their case. The observations of this Court in
AIR 1957 Rajasthan 318 were treated as obiter dicta. The interpretation of the
Travancore Cochin, Madhya Bharat and Mysore High Courts on the word 'may' as
meaning 'shall' was not accepted.

17. These are all the cases that bear on the interpretation of Sub-Section (4) of Section
207-A. A careful examination of the cases, reveals that the controversy has arisen
firstly because of the interpretation of the words 'if any', and secondly, because of the
use of word 'may' in the first part of the sub-section. In my humble opinion, the
difficulty in the interpretation of these words disappears altogether if a construction
which I venture to adopt, is given to that Sub-Section. Under Section 173 Criminal
Procedure Code, every investigation is to be completed without unnecessary delay. As
soon as it is completed, the officer in charge of the police station is to forward to a
Magistrate empowered to take cognizance of the offence on a police report, a report,
which amongst other things must contain the names of the persons, who appear to be
acquainted with the circumstances of the case. In order to ensure expeditious disposal
of an inquiry or a trial, it may be taken that the prosecution should produce all the oral
and documentary evidence against the accused along with the accused before the
Magistrate, and now a provision has also been made under Sub-Section (4) of Section
173 that the accused should also be furnished copies of the documents referred to
therein. Under Section 207A as soon as the Magistrate receives the report forwarded
under Section 173, he should fix a date for holding an inquiry. In my opinion, on the
date so fixed, it is the duly of the prosecution to bring forward all the documents on
which the prosecution proposes to rely as also all the persons whom the prosecution
proposes to examine as witnesses at the trial. It is only when this is done that it may be
expected that the magistrate shall finish the inquiry expeditiously. For this, under Sub-
Section (2), a provision is made for issuing process to compel the attendance of any
witness or the production of any document or thing. The officer conducting the
prosecution is under a duty to apply to the Magistrate at any time before such date, to
issue a process and the magistrate is bound to issue such a process, unless, for reasons
to be recorded, he deems it unnecessary to do so, Sub-Section (3) lays down the duty
of the magistrate to satisfy himself that the documents referred to in Section 173 nave
been furnished to the accused. Then comes Sub-Section (4). In the opening part of the
section, a duty is cast on the magistrate to take the evidence of the persons produced
by the prosecution. Who are such persons whose evidence the magistrate is bound to
record under the first para of Sub-Section (4) ? By the kind of information supplied to
the magistrate under Section 173, the magistrate knows the names of the persons who
appear to be acquainted with the circumstances of the case.
He further knows the persons whom the prosecution proposes to examine as its
witnesses, and the nature of the evidence which they are likely to give at the trial.
Now, if there are several eyewitnesses of an incident, the prosecution may, for
justifiable reasons, produce some of them only. There must be in the words of their
Lordships of the Privy Council in Stephen Senevirane v. The King, 12 "utmost candour
and fair ness on the part of those conducting prosecutions." but proceeded their
Lordships to say that "at the same time they cannot, speaking generally, approve of an
idea that the prosecution must call witnesses irrespective of considerations of number
and reliability or that a prosecution ought to discharge the functions both of
prosecution and defense." This being the position, the prosecution may not think it
proper or conducive to the fair trial of the case to produce all the eye-witnesses and
may, for justifiable reasons, limit their number. It has already been pointed out that all
the prosecution witnesses must appear before the committing magistrate on the date
fixed by him for holding the inquiry. Sub-Section (4) directs that the magistrate shall
take the evidence of all the witnesses produced by the prosecution as witnesses to the
actual commission of the offence alleged, if there are any such witnesses before him.
This amounts to this that the magistrate is bound to record the evidence of all the eye-
witnesses who have appeared before him and whom the prosecution intends to
produce at the trial in support of its case. Now let me proceed to examine the language
of the first part of Sub-Section (4) in this light.
Sub-Section (4) does not say that the prosecution is to produce anybody in evidence.
The duty of recording evidence is cast on the Magistrate. In contrast with the
phraseology used in Sub-Section (4), we may examine the phraseology used in sub-
section (2) of Section 286, Criminal Procedure Code which relates to the trial of an
accused Sub-Section (2) of that section by providing that "the Prosecutor shall then
examine his witnesses", leaves it to the Prosecutor to produce his witnesses in
evidence. We may also note S. 208, Sub-Section (1). where it is provided that "in any
proceeding other than on a police report, the Magistrate shall take ...........all such
evidence as may be produced in support of the prosecution or on behalf of the accused
or as called for by the Magistrate".
Similarly, under Section 263, which lays down the procedure instituted on a police
report, the Magistrate is, after framing of the charge, to take all such evidence as may
be produced in support of the prosecution. The language in sub-section (4) of it 207-A
is in marked contrast with the language of the other sections referred to above. In other
sections, an indication is given that the prosecution is to produce witnesses in
evidence in. support of its case, while under Sub-Section (4), it is the Magistrate, who
is to take the evidence. Such persons are brought forward by the prosecution before
the Magistrate for the expeditious disposal of the inquiry. It is in this sense that the
word 'produce' should be interpreted. The word 'may' does not I create any difficulty
on this interpretation as it is a word giving discretion to the prosecution in the matter
of restricting the number of the eye-witnesses, which I may say, it must do in a
manner so as not to be unfair to the accused. The use of the word 'may' is appropriate
as it grants that discretion.

18. Be it noted that the Magistrate is not to record the statement of any other eye-
witnesses who may appear to be present at the scene of the incident, but on whom the
prosecution does not want to rely. If that power is to be exercised, it can be done only
under Section 540, Criminal Procedure Code

19. Coming to the words, 'if any', they clearly refer to such persons and the word 'such'
carries in its train the whole of the qualification of a person mentioned in the Sub-
Section, that is, he must be person produced by the prosecution as a witness to the
actual commission of the offence alleged. Sub-Section (4) says that if there is any such
person, the Magistrate is bound to take his evidence. On the interpretation of the
words, 'if any', I am in agreement with the view taken by Chakravartti, C.J. in AIR
1958 Calcutta 324, but with respect, I may say that the words 'produced by the
prosecution' have been unnecessarily construed as meaning produced by the
prosecution in evidence and this has led to all the difficulty. The section in effect says
that the prosecution may produce before the Magistrate such witnesses of the actual
commission of the offence alleged, as they may think proper and the Magistrate is
bound to take the evidence of such persons.

20. In this interpretation, I am supported by the course the legislation took in the
Parliament before it emerged in the form of Section 207-A. The original Bill provided
that the statements of all the material witnesses should be recorded under Section 164
Criminal Procedure Code The report of the Joint Select Committee was to the effect
that apart from other considerations, there are administrative difficulties in the
examination of witnesses from time to time before a Magistrate as the investigation
proceeds, and the Committee deleted the proposed amendment to Section 161 which
imposed an obligation on a Police Officer to get the statements of the material
witnesses recorded under Section 164. The Committee also redrafted Section 207-A.
The relevant portion of the report on this point is, as follows :-

       "As the original Clause 20 has been omitted, there is no longer any obligation
       on a Police Officer to get the statements of all the material witnesses recorded
       under Section 164. It has, therefore, been provided that persons who have
       witnessed the actual commission of the alleged offence, should be produced
       before the Magistrate and ho should record their statements. The Magistrate has
       also been given the discretion to record the statement of any one or more of the
       other witnesses, if he considers it necessary to do so."-(Report of the point
       Select Committee-Gazette of India, Extraordinary, dated the 3rd of September,
       1954, Part II, Section 2. Page 413).

Sub-Section (5) to 207-A was added by the Parliament to make it beyond doubt that
the accused has liberty to cross-examine the witnesses examined under Sub-Section
(4). This course of legislation clearly shows, as does the report of the Select
Committee, that it was the intention of the Parliament that the persons who had
witnessed the actual commission "at the alleged offence should be produced before the
Magistrate and he should record their statements. In my opinion, this intention has
been carried out in the language employed in Sub-Section (4) and there is nothing in
that section which may be said to be creating any difficulty in construing the section in
that light.

21. The construction of Sub-Section (4) in the aforesaid manner is also advantageous
to the accused. Before the amendment of the Code of Criminal Procedure and the
enactment of Section 207-A, the accused had the right to see that the prosecution
witnesses are examined and cross-examined even at the inquiry stage. For the
expeditious disposal of the cases at the inquiry stage, the Legislature thought it proper
to curtail this right of the accused to a certain extent. Lest it might operate adversely
against the accused, it provided under Section 173(4) that the Officer in charge of the
Police Station should, before the commencement of an inquiry or trial furnish or cause
to be furnished to the accused free copies of the documents referred to therein and
such documents give sufficient information of the nature of the charge which he has to
face and of the evidence that was to be produced against him in serious cases of trial
by a Court of Session, or by the High Court. Section 207-A further laid down that at
least all the eye-witnesses on whom the prosecution wants to rely should be examined
before the Magistrate and the accused should have a right of cross-examination. The
Parliament was jealous not to curtail the rights of the accused beyond a limit. It must
be recognized that the trial in a criminal case mostly depends on oral testimony. From
the point of defense, successful cross-examination is the main weapon in the hands of
the accused by which he can unravel the untruths and falsehoods in the prosecution
case. Sufficient preparation in advance as to the antecedents of the witnesses is
required for an effective cross-examination, and when a witness is said to be an eye-
witness of a serious offence, it must have been deemed necessary that the accused
must have an occasion to see him face to face before the trial commences and to elicit
such information from him as may supply sufficient information regarding the
antecedents of the witness and the manner in which the witness is alleged to have seen
the incident. All this information is likely to prove very useful to the accused at the
trial in the cross-examination of the witness. Sometimes an advance information of the
type is absolutely necessary in order that there might be an investigation by the
defense not only regarding the antecedents, of the witness but also in other
circumstances of the case. In my opinion, the Parliament had all this in mind when it
provided in Sub-Section (4) that the Magistrate should record the evidence of the eye-
witnesses of the prosecution and further provided expressly by way of abundant
caution under Sub-Section (5) that the accused shall have a right of cross-examination
though such a right could be taken for granted as a matter of law.

22. Now, let me consider the case from the point of view of me committing court.
Under Sub-Sections (6) and (7), a committing court has important functions to
perform. Sub-Section (6) gives the power of discharge and Sub-Section (7) gives the
power of framing a charge when the Magistrate is of the opinion that the accused
should be committed for trial. How can this power be effectively and judicially
exercised if the Magistrate is left with certain documents on which to base his opinion
? The "Division Bench of this Court in AIR 1957 Rajasthan 318 was of the opinion in
a case where there were no eye-witnesses that the only proper way in which the
Magistrate in a case of this character could exercise his discretion judicially would be
to hold that the interests of justice required that the evidence other than that of the eye-
witnesses must be recorded to establish the connection of the accused with the offence
and that being so, he must proceed to record such evidence and thereafter exercise the
powers vested in him under Sub-Sections (6) and (7) of Section 207-A, Criminal
Procedure Code

23. In my humble opinion, the aforesaid considerations are sufficient to outweigh any
consideration of delay at the stage of inquiry which might be occasioned by recording
the statements of the eye-witnesses. The Parliament struck a balance between
avoiding delay at the stage of inquiry and giving fair play to the accused, who was
suspected of having committed a serious offence. It also took note as to how a
Magistrate could effectively discharge his duties at the inquiry stage, and in Sub-
Section (4) laid down a procedure which met both the demands of justice and
expeditious disposal of the case at the inquiry stage. The language of Sub-Section (4),
in my humble opinion, carries this meaning without straining it in any manner.

24. In my opinion the commitment order of the learned Munsiff-Magistrate, First
Class, Malpura dated the 16th of December 1957, deserves to be quashed. Section
215, Criminal Procedure Code cannot govern the present case, as it applies to an order
of commitment under Section 213 which applies to the proceedings on a private
complaint, but I would quash this order under the revisional jurisdiction of the Court
under Section 489, Criminal Procedure Code

25. The result is that the order of the learned Munsiff-Magistrate. First Class, Malpura
dated the 16th of December, 1957 is set aside and the case is remanded to him with a
direction to examine all the witnesses to the actual commission of the offence whom
the prosecution intends to produce at the trial and then to pass order according to law.

I. N. Modi, J.

26. I have perused the judgment prepared by my learned brother Bhandari, J. and
desire to express my own opinion separately as I was party to the decision in " AIR
1957 Rajasthan 318, and the question involved in this reference is of considerable
importance.

27. The precise question which arose for decision in Birda's case, AIR 1957 Rajasthan
318, relating as it did to the interpretation of Section 207A(4), Criminal Procedure
Code, was somewhat different although we ventured to express our opinion on the
question now raised as well, at the end of our decision in that case. What we said was
this :

       "Reverting to the other question for a moment, namely, whether the prosecution
       should produce all the persons who are witnesses to the actual commission of
       the offence alleged or they may produce only a few of them before the
       committing Magistrate, we think (though we do not wish to express a firm
       opinion in this matter as the point is not directly raised by the present reference)
       that the prevention should not hold back eye-witnesses to the actual commission
       of the offence alleged at their sweet will and pleasure, and, in any case, they
       would be running a grave risk it they later produce such witnesses at the trial
       whom they have not produced before the committing Magistrate. We are
       inclined to the view that the prosecution should produce all such witnesses as it
       intends to produce at the trial."

28. That question has been pointedly raised in the present reference. Briefly put, the
question is whether Sub-Section (4) of Section 207-A leaves it entirely to the
discretion of the prosecution to produce only some or even none of the eye-witnesses
to the crime under enquiry before the committing Magistrate out of those they intend
to produce at the trial, or it envisages or requires them to produce all the eye-witnesses
before the committing Magistrate whom they intend to examine at the trial.
29. At the very outset I should like to say, with all respect, that the language of this
Sub-Section is not as happy or clear as one should have wished it to be and that is why
it has given rise to a sharp cleavage of judicial opinion in the various High Courts in
our country. While some courts have gone to the length of holding that the first part of
this Sub-Section casts a duty on the Magistrate to record only such evidence as the
prosecution may choose to examine before him and that it leaves an almost unfettered
discretion to and imposes no obligation on the prosecution whether to produce any
eye-witnesses or not at the committal stage, and that it may be open to the Magistrate
to commit the accused merely on reading the police papers under Section 173
Criminal Procedure Code even though no evidence whatsoever has been recorded by
him, other Courts have held that the word "may" in the expression "as may be
produced by the prosecution to the actual commission of the offence alleged" has a
compulsive force and that thereby an obligation is cast on the prosecution to produce
the evidence of all eye-witnesses, if any, of the offence under enquiry before the
committing Court.

30. I have given the matter my most careful and anxious consideration may state at
once that neither of these views can be accepted as sound. The view that the section
leaves it entirely to the discretion of the prosecution whether or not to produce any
eye-witnesses to the actual commission of the offence before the committing
Magistrate and that even so the prosecution can ask for the committal of the accused
is, with as respect, entirely unsound on general principles of criminal jurisprudence as
also having regard to the entire scheme and structure of Section 207A and Sub-
Sections (6) and (7) thereof in particular. The acceptance of this extreme view would
to my mind, reduce the accused's right of discharge almost to a nullity for the vast
majority of cases. I propose to revert to and examine this aspect of the case in greater
detail later.

31. As for the view that the word "may" in the expression "as may be produced by the
prosecution as witnesses "to the actual commission of the offence alleged" has a
compulsive force and is tantamount to "shall", I do not think that it would be correct to
construe a qualifying phrase containing the word "may" in such obligatory sense. The
actual substitution of the words "may" by "shall" would at once go to show that it
would he utterly bad English to do anything of the kind. I should also like to point out
here that, after all, the law does not compel the prosecution to produce all eye-
witnesses, even at the trial (See Section 286 of the Code) and a certain amount of
reasonable discretion has, in the very nature of things, to be left to the prosecution so
as to enable them to choose their witnesses and discard such of them as may not be
trustworthy or may be superfluous. See AIR 1936 PC 289; Adel Muhammed v.
Attorney-General of Palestine, 13 and Malak Khan v. Emperor 14 To quote the
observations of Lord Porter in AIR 1946 PC 16 :

       "It is no doubt very important that, as a general rule, all Crown witnesses should
       be called to testify at the hearing of a prosecution, but important as it is, there is
       no obligation compelling counsel for the prosecution to call all witnesses who
       speak to facts which the Crown desire to prove. Ultimately it is a matter for the
       discretion of counsel for the prosecution and though a Court ought, find no
       doubt will, take into consideration the absence of witnesses whose testimony
       would be expected, it must adjudge the evidence as a whole and arrive at its
       conclusion accordingly taking into consideration the persuasiveness of the
       testimony given in the light of such criticism as may be leveled at the absence
       of possible witnesses." The Supreme Court approved these observations in
       Abdul Gani v. State of M.P.15 The interpretation of the word "may" as "shall" so
       as to deprive the prosecution of this ultimate discretion would, to my mind, be
       wrong and I do not see any sound justification to adopt this extreme view also. I
       am, therefore, not prepared to hold that the word "may" should be read as
       "shall" in the context in which it has been used, and I find it difficult to accept
       the reasoning in AIR 1957 Madhya Bharat 7 and AIR 1957 Trav Co. 29 and
       other cases which have adopted that view, as correct.

32. The question whether Section 207A requires all eye-witnesses to the actual
commission of the offence to be produced before the committing Magistrate by the
prosecution whom they rely en and intend to produce at the trial or only a few of them
or none at all, has, in my opinion, to be principally determined by the entire scheme of
Section 207A and the general objective behind a committal procedure consistently
with the discretion to which I have referred above.
This objective as explained by me in Birda's case AIR 1957 Rajasthan 318 is two-
fold. On the one hand, the object is that the accused must have an adequate notice of
the case for which he is going to be prosecuted and of the main evidence by which the
prosecutor would seek to prove his case so that the accused may be fully enabled to
prepare his defense and meet the case for the prosecution. The other object, which is
not far less important, is that a Court of Session (or, for that matter, a High Court
where the case may have to be committed to it) may not be unnecessarily burdened
with the task of conducting trials into serious offences where there may be really no
chance of conviction of the accused for such offences, and in such cases it is the duly
of the Magistrate to discharge the accused after recording his reasons. Furthermore,
there are cases in which the Magistrate may come to the conclusion that the accused
need not be committed and should be tried before himself or some other Magistrate for
a lesser offence, in which event he is required to take necessary action accordingly. It
was further pointed out that although it was correct that the Legislature desired up
simplify and speed up the procedure for commitment, in cases instituted on police
report, and to that end introduced amendments by the Criminal Procedure Amendment
Act of 1955, yet, so long as the procedure of commitment has been preserved by our
Code for trial into certain classes of offences the main objective behind a commitment
proceeding should not be lost sight of, and that objective, so far as the accused is
concerned, unquestionably is that he must have a fair and adequate notice of the case
for which he is going to be prosecuted and of all material and important evidence
collected by the prosecutor and by which he would seek to prove the case against him,
and that he should be afforded the opportunity of testing it at the stage of commitment.
33. Adverting to the amended procedure provided under Section 173 of the Code, it
was further pointed out that although this would certainly enable the accused to have
an idea of the material which has been collected against him, this by itself would not
be sufficient notice to the accused of the case for which he was going to be prosecuted
for obvious reasons. That is why even in cases instituted on a police report, Sub-
Section (4) provides for the recording of evidence, and indeed it is indisputable that
the Magistrate must record the evidence of all the eye-witnesses which the prosecution
may produce before him, and it is further provided that where he considers it
necessary in the interests of justice, he should record other evidence also in his own
discretion.
34. Turning nest to Sub-Section (6) it was pointed out that it provides that when the
evidence referred to in Sub-Section (4) has been taken and the Magistrate has
considered all the documents referred to in Section 173 and has, if necessary,
examined the accused for the purpose of enabling him to explain any circumstances
appearing in the evidence against him, and after giving the prosecution and the
accused an opportunity of being heard, the Magistrate may cither discharge the
accused if he is of opinion that such evidence and documents disclose no grounds for
committing the accused person for trial or, broadly speaking, where he comes to a
conclusion that there is a case on which the accused should he tried, he must frame a
charge and commit the accused for trial under Sub-Section (7). Now I adhere to the
view which was expressed in Birda's case AIR 1957 Rajasthan 318 that it would be
extremely difficult if not impossible for a Magistrate to perform the duties laid down
by Sub-Sections (6) and (7) unless he records some evidence in the case himself. It
can only be in this manner that the accused can have a proper opportunity of knowing
the case against him and afro congest it for which provision has been made within the
section itself.

35. It was on these considerations that the Bench of which I was a member held, in
Birda's case AIR 1957 Rajasthan 318, that where a case depends not upon the direct
testimony of certain persons who may have witnessed the actual commission of the
crime, but it rests on circumstantial evidence, the only proper manner in which the
Magistrate could and should exercise his discretion to record the other evidence or not
would be to hold that it was necessary in the interests of justice to take the evidence of
the other witnesses connecting the accused with the crime, and, that being so he must
record such evidence also.
I have no hesitation in saving that if the discretion which has been vested in the
Magistrate in such oases is not exercised in the manner pointed out above, it would be
almost impossible for the Magistrate properly to consider the discharge of the accused
in a given case. By no other manner would be enabled to formulate a proper opinion
on the question whether the accused deserves to be committed or discharged.

36. Bearing in mind the aforementioned overall objects of a committal proceeding and
a close examination of the provisions of Section 207A and the connected sections, and
the general principles applicable to criminal trials in offences of a serious character, it
seems to me that the view which the bench expressed in Birda's case AIR 1957
Rajasthan 318 on the question raised before us now is correct.

37. I proceed to critically examine some of these provisions now. Section 170 provides
that if after an investigation into an alleged crime, the police come to the conclusion
that there is sufficient evidence or reasonable ground to justify the trial of the accused,
the officer in charge of the police station concerned shall forward the accused to a
Magistrate competent to try the case himself or to commit him for trial as the case
may be. Sub-Section (2) of this section further lays down that the police officer shall
require the complainant, if any, and so many of the persons who appear to him to be
acquainted with the circumstances of the case as he may think necessary to execute a
bond to appear before the Magistrate and prosecute or give evidence against the
accused. Section 171 then provides that no witness or complainant shall be required to
accompany a police officer on his way to the court of the Magistrate. In other words,
the police cannot insist on the physical presence of the witnesses with themselves to
the court of the Magistrate. Then we come to Section 173. This section, in so far as it
is material for our present purposes, provides that as soon as an investigation is
completed (and it is laid down that if should he completed without unnecessary delay),
he shall forward a report to the Magistrate concerned in the prescribed form setting
forth among other things "the names of the persons who appear to be acquainted with
the circumstances of the case." Under Sub-Section (4) the officer in charge of the
Police Station is required before the inquiry or the trial commences to furnish a copy
of the challan - and the first information report and all other documents on which the
prosecution relies including the statements (and confessions if any) of all the persons
whom the prosecution proposes to examine as its witnesses, to the accused free of
cast.

38. This brings us to Section 207A. It may be pointed out that the old Code prescribed
a single procedure for committal of cases instituted on police report or otherwise. The
amendment Act of 1955, however, has retained the old procedure for cases committed
otherwise than on a police report but has introduced a somewhat shorter and speedier
procedure for commitment; of cases instituted on a police report. In order to obviate
delays, the Magistrate is required by Sub-Section (1) of Section 207A. ordinarily, to
fix a date not later than 14 days from the receipt of the report under Section 173 for
the purpose of holding an enquiry. By Sub-Section (2), facility is provided to the
officer conducing the prosecution to apply to the Magistrate before the
commencement of the enquiry to issue process to compel the attendance of any of the
prosecution witnesses. Sub-Section (3) requires that the Magistrate must assure
himself at the time of the commencement of the inquiry that the necessary pagers
under Section 173 (4) have been supplied to the accused, and, if not, be must cause
them to be so supplied before the enquiry commences.
39. Then comes Sub-Section (4) which is in the following terms :-

       "The Magistrate shall then proceed to tike 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
       interests of justice to take the evidence of any one or more of the other
       witnesses for the prosecution he may take such evidence also." This Sub-
       Section may be divided into two parts. The first part appears to deal with eye-
       witnesses and the second part with witnesses other than eyewitnesses. Again, a
       duty seems to have been laid on the Magistrate by the first part thereof but a
       discretion seems to have been vested so far as the second part is concerned.
       (Birda's case AIR 1957 Rajasthan 318 referred to above arose under the second
       part of the Sub-Section and not under the first part as there were no eye-
       witnesses in that case and a commitment had been made therein without
       examining any witnesses whatever).

40. Now the question is this what precisely is the duty which has been enjoined under
the first part. Quire obviously the duty has been enacted from the angle of the
Magistrate and not from that of the prosecution. But the two aspects are inter-related
and cannot be divorced from each other. There can be no gainsaying the position that
the Magistrate must examine in such witnesses whom the prosecution seek to examine
as eye-witnesses, and if he declines to examine any of, them, he would be committing
an illegality.
The further question that arises is whether the prosecution have an unfettered
discretion to examine only some of the eye-witnesses or none at all at the stage of
commitment out of those whom they intend to produce at the trial and whose names
are contained in the challan or they must produce all of them. The narrow point which
arises for consideration in this connection is what is the proper meaning which should
be attributed to the expression "produced" in the context in which it occurs. I think
that this word can be properly interpreted only if we bear in mind the provisions of
Sections 170 and 173 which impose a certain duty on the prosecution. Section 170
clearly lays down that when the police officer forwards an accused to the competent
Magistrate for enquiry or trial, he must make up his mind as to which of the witnesses
he would produce in support of the prosecution and he is required to bind them over to
give evidence at the enquiry or the trial as the case may be. Under Section 173 he is
bound to mention in his police report the names of all such persons. These may
obviously be eye-witnesses as well as others. Having regard to these provisions, my
view is that the phrase "such persons, if any, as may be produced by the prosecution
as witnesses to the actual commission of the offence alleged" properly means and
covers such eye-witnesses whose names have been disclosed in the police report under
Section 173 and who are obviously intended to be produced at the trial, I hold
accordingly.
41. I may point out that this view, in no way, militates against the ultimate discretion
of the prosecution to produce not all but such witnesses as seem to them to be genuine
and truthful in support of their case and to Formulate their list of witnesses
accordingly. But it seems to me to be equally important that it should not generally
speaking, be open to them once they have fixed their list of witnesses, to examine only
a few of them before the committing Magistrate and ask for a committal. I should also
like to point cut in this connection that after all is said and done the object of the
prosecution is not to work for a conviction at any cost but to see that justice is done
and that it is essential for this purpose that the accused should have a fair trial. It
cannot be over-emphasized that if the intention of the Legislature in enacting this
provision were to leave an unlimited discretion to the prosecution in this regard it is
hardly any use imposing any duty on the Magistrate to examine eye-witnesses,
because such a duty could always be set at naught by the prosecution declining to
examine any eye-witnesses before the committing Magistrate. And if such a
contingency were to be permitted, I have no doubt that the utility of a committal
proceeding would be entirely defeated.

42. Summing up my conclusion therefore is that if a commitment proceeding which
has been retained by our Legislature is to have any real value and is not to be a
meaningless formality, then the requirement of the first part of Sub-Section (4) of
Section 207-A is that where there are eyewitnesses to a crime and whom the
prosecution is not prepared to discard for any valid reasons as false or unreliable, then
such witnesses should be produced by the prosecution before the committing
Magistrate, and if they are not so produced, the committing Magistrate must examine
them in pursuance of the duty which has been cast upon him under this Sub-Section.

43. It may be remembered in this connection that under the old procedure, which has
still been retained for cases instituted otherwise than on a police report, the
prosecution, generally sneaking is required to examine all the evidence on which it
relies before the committing Magistrate. See Section 208 Criminal Procedure Code
The expression "all such evidence as may be produced in support of the prosecution"
also occurs in this section.
It seems to me to have been generally recognized that under this procedure the entire
evidence on which the prosecution places its reliance is required to be examined, that
is of eye-witnesses and others as well. But, in the interests of speedy justice, the old
requirement as to the examination of witnesses other than eye-witnesses in cases
instituted on police report has been done away with and that, to my mind is the true
effect of Section 207-A. According to the ruling of this Court in Birda's case, AIR
1957 Rajasthan 318, the examination of such other evidence is now a matter of
discretion with the Magistrate where there are no eyewitnesses, but this discretion has
to be exercised judicially, and the only proper manner in which it can be so exercised
is to examine the circumstantial evidence which goes to connect the accused with the
alleged crime.

44. It may be permissible in this connection to refer to the legislative history of the
amended Section 207-A, though I am fully conscious that, ordinarily speaking it is the
duty of the Courts to interpret a particular provision of law on its own language,
putting the natural meaning on the words used without being guided by any such
extraneous aid. But it seems to me that where the language of a particular provision of
law is not clear and is somewhat obscure and the question is as to what was the
intention of the Legislature in enacting it, it may not be improper to refer to historical
material leading to such legislation. As to the enactment of Section 207-A as now
amended, the Joint Committee of the two Houses of our Parliament in their report
made the following observations in this connection :

       "The Committee have redrafted Section 207-A. As the original Clause 20 has
       been omitted, there is no "longer any obligation on a police officer to get the
       statements of all the material witnesses recorded under Section 164." *It has,
       therefore, been provided that persons who have witnessed the actual
       commission of the alleged offence should be produced before the Magistrate
       and he should record their statements.
       * Note : By this clause, Sub-Section (5) was proposed to be added to Section
       161 imposing an obligation on a police officer to get the statements of all the
       material witnesses recorded under Section 164, and this procedure was to be
       followed in all cases triable by a Court of Session and as far as practicable in
       other cognizable cases also. The Joint Committee deleted be proposed Sub-
       Section (5) of Section 161 as it was of the view that apart from other
       considerations there were administrative difficulties in the examination of
       witnesses from time to time before a Magistrate as the investigation proceeds.

Than Magistrate has also been given the discretion to record the statement of any one
or more of the other witnesses, if he considers it necessary to do so. The Magistrate
shall take into consideration the statements recorded by the police under Sub-Section
(3) of Section 161 and all other documents referred to in Section 173 along with the
statements recorded by him. It he finds that these statements and documents disclose
no grounds for committing the accused person for trial he may discharge the accused.
Otherwise the accused should be committed for trial, and the Magistrate shall frame a
charge which should be read and explained to the accused. In order to avoid delay in
the disposal of these cases, it has been provided that the Magistrate should, on receipt
of a report forwarded under Section 173, fix a date for the recording of the statements
of witnesses which shall be not later than fourteen days from the date of the receipt of
the report. It has also been provided that the absence of a witness or of any one or
more of the accused should not be a ground for adjournment. This procedure will not
prejudice the case of the accused because the witnesses whose statements are not
recorded at this stage will be examined at the trial before a Court of Session." The
above cited extract from the Report of the Joint Committee of the two Houses of
Parliament strengthens mo in the conclusion to which I have come above that the true
intention of the Legislature in enacting this section was to require that the prosecution
should produce and the Magistrate should examine all eye-witnesses to the actual
commission of the crime on whom the prosecution place reliance and whom they
intend to produce at the trial. As pointed out in Birda's case, AIR 1957 Rajasthan 318,
there may be exceptional cases, e.g. where a witness may not be available in the
course of preliminary inquiry on account of serious illness or his having left his usual
place of residence and his whereabouts may not be known or for like causes and in
such cases the prosecution would be within their bounds in omitting to produce such
witnesses before the committing court and may produce them later in the Court of
Session and invoke the assistance of Section 540 of the Code.

45. At this stage, I wish particularly to refer to the decision of a Division Bench of the
Allahabad High Court in AIR 1958 Allahabad 861. Takru, J. who delivered the main
judgment in the case held1 that the initiative under the first part of Section 207-A lies
entirely with the prosecution and that if the prosecution do not examine any eye-
witnesses or examine only some of them, the Magistrate cannot compel the
examination of the remaining eye-witnesses under the first part of the Sub-Section'.
(The underlining here into ' ' is mine).
As to the second part of the Sub-Section, the learned Judge observed that it was of
wider amplitude and that it embraced witnesses direct or otherwise on whose
testimony the prosecution proposed to base their case, and that under this Sub-Section
the Legislature has vested the Magistrate with the discretion to examine any one or
more of them suo motu or at the instance of the accused if he considers their
examination necessary in the interests of justice. Further, the learned Judge observed
that the object of the amendments in file Criminal Procedure Code in 1955 was to
simplify and speed up the trial of criminal cases, and that this object could not be
achieved to any appreciable extent if the Magistrate was required to record the
evidence of all the eye-witnesses and that was why Section 173 Criminal Procedure
Code was framed in the manner in which it was. In this view of the matter, the learned
Judge came to the conclusion that under Section 207-A the Magistrate, was only
bound to record the evidence of such witnesses to the actual commission of the
offence alleged as the prosecution might choose to examine, and that a committal
order based upon an examination of only some of such witnesses, provided they were
the only witnesses tendered by the prosecution for that purpose, would not suffer from
any infirmity or illegality, nor would the prosecution be precluded from adducing in
the Sessions Court witnesses other than those examined before the Committing Court.
The other learned Judge. James, J. who concurred in the decision of Takru, J. observed
that the discretion of producing eyewitnesses rests entirely with the prosecution, and
that if in a particular case they do not choose to produce a single such witness, they
cannot the compelled to do so.
46. With utmost respect, it is impossible to accept this view as sound in law, and
James, J. himself seems to have realized the far-reaching implications of his view
inasmuch as he hastened to add that "it would be desirable for at least some of the
eye-witnesses to be produced for examination." The question would, however, still
remain what is the true intent and effect of Section 207-A read as a whole? If it is
entirely at the discretion of the prosecution whether to produce any eye-witness of the
offence alleged or not, and still a commitment made on merely perusing the
documents under Section 173 Criminal Procedure Code must be held to be good in
law, then if is hardly any use saying that it would be desirable for some of the
witnesses to be produced for examination.
The learned Judges in the above case Seem to have been greatly influenced in the
decision to which they camp by the consideration that the object of the Legislature in
introducing Section 207-A in file Code was to expedite and simplify the commitment
procedure. It is true that that was the object of the legislature in enacting the new
Section 207-A. I venture to submit however, that it does not seem to me to be correct
to hold that the Legislature intended to sacrifice the real object of a commitment
proceeding at the altar of mere speed and therefore the last-mentioned consideration
should not be allowed to 'outweigh all other considerations which are equally
important, if not more; and the Joint Select Committee of both Houses of the
Parliament who were mainly responsible for putting in this provision and who should
naturally have been fully aware of the legislative intention ,to shorten and simplify the
procedure need in that case have hardly said that it has been provided that "persons
who have witnessed the actual commission of the alleged offence should be produced
before the Magistrate and he should record their statements."

47. Putting the whole matter in a nut-shell, I should like to sum up the position like
this. Firstly, Sub-Section (4) of Section 207-A should be read in its proper context and
not taken in Isolation as some Courts, with great respect, seem to me to have done.
Secondly, the entire scheme and structure of See. 207-A should be carefully borne in
mind. Thirdly, the two-fold object of a commitment proceeding should not he lost
sight of, which is (a) that the accused should have a fair notice of tire case against him
and of the material evidence by which the prosecutor would seek to prove his case so
that the accused is fully enabled to prepare his defense and meet or test the case for
the prosecution, and (b) that the Court of Session may not be unnecessarily burdened
with the task of conducting trials into serious offences where such a course is not
called for. Fourthly, a statutory obligation has been laid by the first part of Section
207-A, namely, that it is the duty of tire Magistrate to examine all eye-witnesses
whom the prosecution has selected to produce at the trial and whose names have
therefore been mentioned in the police report under Section 173 Criminal Procedure
Code and therefore it should be equally the duty of the prosecution to produce such
witnesses for examination before him, otherwise the duty imposed on the Magistrate
would be benefit of all meaning. This rule is of course subject to the exception that it
would be open to the prosecution not to produce witnesses at the committing stage
who may not be available during the enquiry for reasons of sickness or want of
knowledge of their whereabouts or for like causes in which case it would be legitimate
for the prosecution to produce such witnesses at the trial under Section 540 Criminal
Procedure Code Further, the Magistrate has been invested with a discretion to record
other evidence also, that is, of witnesses other than eye-witnesses where he considers
the recording of such evidence necessary in the interests of justice. Lastly this view of
Sub-Section (4) of Section 207A does not in any way militate against the intention of
the Legislature in speeding up commitment proceedings. Any other view, in my
humble judgment, would only lead to uncertainty and confusion in trials of this type of
cases which, I have no doubt, should not be permitted.

48. In this view of the whole matter, I agree, though for somewhat different reasons,
with the conclusion to which my learned brother Bhandari, J. has come, namely, that
the true requirement of See. 207A is that the prosecution should, as a general rule,
produce all the eye-witnesses of the offence alleged before the Committing Magistrate
whom they intend to produce at the trial and that the Magistrate should examine all
such witnesses.

49. It follows that the order of commitment made in the case before us without
examining all the eye-witnesses must be held to be bad in law, and, therefore, I agree
that the order of commitment be set aside, and the case sent back to the Magistrate
concerned with a direction that he must examine all the eye-witnesses to the actual
commission of the offence who have been named in the police report under Section
173 and whom the prosecution wish to examine at the trial and then proceed according
to law.
Case sent back.

Cases Referred.

1. AIR 1957 Trav Coc 29
2. AIR 1957 Madh. B. 7
3. AIR 1957 Mys 5
4. AIR 1957 Mys 61
5. AIR 1958 All 861
6. AIR 1958 Col 324
7. AIR 1958 Cal 311
8. 1958 Andh Pra 651
9. AIR 1958 Oris 241
10. AIR 1957 Raj 318
11. AIR 1957 Ker 32
12. AIR 1933 PC 289
13. AIR 1945 PC 42
14. AIR 1946 PC 16
15. AIR 1954 SC 31