J.N.Takru, J. - (1.) These two references by the learned Sessions Judge of Gyanpur arise out of cross-cases and raise two common questions of law, namely (1) whether under Section 207 A (4), Criminal P. C., a committal order which is based upon an examination of some and not all of witnesses to the actual commission of the offence alleged is illegal? and (2) whether the prosecution in such a case are precluded from examining in the Court of Sessions a witness who was not examined in the committing Court?
(2.) Both the references first came up for hearing before our brother Sahai, who referred them to a Division Bench in view of the importance of the questions of law involved therein.
(3.) The facts giving rise to the said references are as follows : At about 7-30 o'clock in the morning of 14-11-1956 a lathi fight took place between two factions in the village of Ahimanpur police station Aurai, district Varanasi. Both the parties to the fight lodged reports with the police, which investigated the cross cases and submitted charge sheets in both of them. In the Magistrate's court they were numbered as criminal cases Nos. 654 and 642 of 1956. In the former case, there were 16 eye-witnesses but the prosecution examined only three and in the latter case, out of the 17 eye-witnesses the prosecution examined only four. The learned Magistrate after perusing those statements and all the relevant documents for the prosecution and giving the accused an opportunity of being heard committed both the cases to the court of Sessions where they were numbered as Sessions Trial Nos. 5 and 6 of 1957 respectively. At the outset of the hearing before the learned Sessions Judge, the prosecution were asked to state whether they proposed to examine all the eye-witnesses mentioned in the calendar of witnesses or only those who had been examined before the Magistrate. It was then stated on their behalf that the prosecution intended to examine all the witnesses to the actual occurrence.;