M PAVALAPPA Vs. STATE OF MYSORE
HIGH COURT OF KARNATAKA
STATE OF MYSORE
Referred Judgements :-
KRISHNA AND MUNISWAMY V. STATE OF MYSORE
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NITTOOR SREENIVASA RAU, J. -
(1.)In this petitition the accused challenges the legality of his commitment under Sec. 207-A of the Code of Criminal Procedure for trial by the Court of Session for an affence under Sec. 333 I. P. C. The ground urged is that such a commitment without taking the evidence of persons alleged to be witnesses to the actual commission of the offence is contrary to the provisions of Sec. 207-A (4). It is riot disputed by the prosecution that there are such witnesses. It is seen that the prosecuting Inspector submitted to the Court that he did not intend to examine any eye-witnesses in the Committal Court, that thereupon the accused filed an application that persons cited as eye-witnesses may be summoned and examined and that the Magistrate refused the request. The accused took up the order of the learned Magistrate refusing to summon the eye witnesses in revision to this Court in Cr. E. P. 83 of 1956 and this Court dismissed that petition on the ground that it was not necessary to express any opinion at that stage about the correctness of the course adopted by the learned Magistrate. Thereafter the learned Magistrate looked into the F. I. R. and other documents furnished by the prosecution and made the committal order which is now challenged.
(2.)The learned Magistrate in rejecting the accused's application for calling the eye witnesses took the view that if the prosecution did not produce the witnesses he could not compel them to do so. It is contended by the learned Advocate for the accused that in an inquiry into cases triable by the Court of Session or High Court it is obligatory for the Magistrate under the above provision i.e., Sec. 207-A, to examine eye witnesses before he arrives at a conclusion whether the accused is to be discharged, tried before himself or some other Magistrate or committed for trial, in contrast to the procedure prescribed for the trial of warrant cases in regard to which under Sec. 251-A it is not necessary to examine any witnesses before a charge is framed. The learned Advocate has relied upon certain observations in the order of this Court in Krishna and Muniswamy v. State of Mysore, I.L.R. 1956 Mys. 255 (258-259). which read as follows :
"it was contended by the learned Counsel for the petitioners that if this should be the view, then no difference exists between section 207-A and section 251-A. It is not correct to say that there is no difference between the procedures laid down in these two sections. Sec. 207-A deals with an enquiry before a Magistrate where the case is triable exclusively by a Court of Session or High Court, and section 251-A relates to the procedure to be followed in the trial of warrant cases instituted on police reports. Under Section 251-A it is not obligatory on the part of the Magistrate to record any evidence either of witnesses to the actual commission of the offence or otherwise and he can frame a charge solely depending upon the documents produced on the side of the prosecution and referred to in section 173 of the Criminal Procedure Code, whereas under section 207-A (4) it is incumbent on the Court to examine witnesses as to the actual commission of the offence. This is the main difference between the two sections Therefore it is futile" to contend that there is no difference between the procedures laid down in the two sections 207-A and 251-A."
(3.)Those observations however have to be read in the context of that case. No eye-witnesses were cited for the prosecution in that case. The accused contended that nevertheless it was obligatory for the Committing Magistrate to record evidence before he committed the accused. This Court contrasted Section 207-A and 251-A in considering that question and indicated that the examination of eye-witnesses was contemplated under Section 207-A while it was not contemplated under Sec. 251-A. There was no occasion to express any opinion on the point that has arisen for consideration now.
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