T.S.Misra, J. - (1.) Mohammad Jalil Ashraf Opposite Party No. 1 filed a complaint dated 20th September, 1972 in the Court of Judicial Magistrate, Barabanki under Sections 147, 447, 384, 342, 379 and 504, Indian Penal Code. His statement was recorded under Section 200, Cr. P.C. (old) on 21st October, 1972. Thereupon on the same day the learned Magistrate passed the following orders: The complainant examined under Section 200, Cr. P.C. Grounds sufficient. The accused shall be summoned for 25-11-1972 for an offence under Section 395, I.P.C. The complainant shall take necessary (illegible) today. Summonses were accordingly issued to the accused persons. The accused 5 and 6 appeared before the learned Magistrate on 25th November, 1972 and they were granted bail. The accused 1 to 4 appeared before the learned Magistrate on 22nd December, 1972 and were also granted bail. The learned Magistrate fixed 6th March, 1973 for recording evidence. The case was ultimately taken on 13th April, 1973 and the statement of one Kesho Nandan Srivastava P. W. 1 was recorded who filed two documents as well. The statement of the complainant was recorded on oath on 14th September, 1973 but it remained incomplete; hence further statement of the complainant was recorded on oath on 15th September, 1973 and the case was adjourned to 23rd November, 1973 for recording the rest of his statement. It was again adjourned to 30th January, 1974 and later to 18th April, 1974. The case was then posted for 25th April, 1974 for arguments. In the meantime the new Code of Criminal Procedure (Act No. 2 of 1974) came into operation with effect from 1st April, 1974. The learned Magistrate heard the complainant and his counsel and the accused persons and their counsel on 20 the July, 1974 and it appeared to the learned Magistrate that it was a matter under Section 395, I.P.C. triable exclusively by the Court of Session, hence he committed the case to court of session. All the accused were on bail and they were allowed 15 days time for obtaining orders for bail from the court of session. The learned Magistrate committed the case to the Court of Session and sent along with the committal order a calendar mentioning the names of the accused persons and the names of the witnesses for the prosecution. The case was registered as S. T. No. 227A of 1974 in the court of First Additional District and Sessions Judge, Barabanki who framed charges against the accused persons on 19th November, 1976, An application 13-B was filed before the learned First Additional District and Sessions Judge not to allow the prosecution to examine any other witness except Jalil Ashraf who alone was examined before the learned Magistrate. This application was rejected by the learned First Additional District and Sessions Judge vide order dated 30th November, 1976. Against the order, the accused persons filed the instant Criminal Revision No. 97 of 1977.
(2.) This revision was heard by a learned single Judge before whom it was urged that no evidence other than that of the complainant could be recorded in the trial as no other witness was examined during the commital proceedings and that the commitment itself was illegal because the learned committing Magistrate had not followed the provisions of the proviso to Section 202(2), Cr. P.C. It was, therefore, submitted before the learned single Judge that in such a case the proper procedure for the court would be to quash the commitment proceedings and direct the Magistrate (to re-start) with the new Criminal Procedure Code. In support of the contention reliance was placed before the learned single Judge on Parsuram v. Radhey Shyam. (1977) 3 All LR 508. Gyanendra Nath Awasthi v. State 1977 All WC (Journal) 21 and Chandra Ketu v. State, Criminal Revn. No. 76 of 1976 decided on 27th January, 1977. The learned single Judge felt that the cases of Parsu Ram (supra) and Gyandendra Nath Avasthi (supra) required reconsideration by a larger Bench and therefore referred the case to a larger Bench. That is how the Criminal Revision No. 97 of 1977 has been placed before us.
(3.) The learned Counsel for the applicants reiterated his submission which he had made before the learned single Judge and submitted that the commitment proceedings be quashed and the Magistrate be directed to restart the same in accordance with the new Cr. P.C. The revision application has been opposed by the learned Government Advocate who submitted that on the facts of the case it was not necessary for the Magistrate to call upon the prosecution to produce all the witnesses before him before committing the case to Sessions Court,;