L.N.Chhangani, J. - (1.) This is a revision by the petitioner Ajit Singh requesting that the order of the Sub-Divisional Magistrate, Bhinmal dated 24-10-1959 committing the petitioner to the Court of Sessions for trial under Sections 326 and 307, Indian Penal Code be quashed.
(2.) The relevant facts are these: Ajit Singh was challaned in the Court of the Sub-Divisional Magistrate. Bhinmal on 9-12-59 for offences under Sections 307, 324 and 326 I. P. C. In the calendar of witnesses Mohansingh, Narpatsingh, Ayub Singh and Kundansingh were cited as eye witnesses of the occurrence. The case originally was fixed for 23.12.59. On that day one witness Mohansingh was present but as the Sub Divisional Magistrate was out on duty the case was adjourned to 24-12-59. On that date one eye-witness was examined. The remaining three eye witnesses were not present. The Advocate for the accused conceded that the accused should be committed for trial under Section 307 I.P.C. The learned Magistrate consequently, on 2812-59, framed charges under Sections 307 and 326 I.P.C. and also recorded a Committal order committing the accused for trial. In the committal order it was recorded by the learned Magistrate that the remaining eye-witnesses were not examined as the accused's counsel conceded for framing of the charge and commitment. After the receipt of the case in the Court of the Additional Sessions Judge, Jalore it could not be taken up for a few hearings for one reason or the other. On 28th June, 1960 when, the trial was about to begin the counsel for the accused submitted an application to the Additional Sessions Judge praying that recommendations may be made to the High Court for quashing the commitment. The main ground on which the application was made was that the Magistrate had committed a serious illegality in committing the accused to the Court of Sessions for trial without examining all the eyewitnesses. Reliance was placed on Ghisa v. State, AIR 1959 Raj 294 : (ILR (1959) 9 Raj 944). The learned Judge rejected the petitioner's application. The petitioner has, therefore, filed the present revision application.
(3.) The learned Government Advocate in opposing the revision contended that the decision of this Court in A.I.R. 1959 Raj. 294 : I.L.R. (1959) 9 Raj. 944 recognizes a discretion on the part of the Magistrate in the matter of examination of eye witnesses. In a proper case Magistrate could pass an order of commitment without examining all the eye witnesses. He pointed out that Bhandari J. in his judgment at p. 954 of (ILR Raj); (at p. 298 of A.I.R.) quoted an extract from the Select Committee's report in which it was stated "that persons who have witnessed the commission of the alleged offence, should be produced before the Magistrate and he should record their statements." He emphasised the word "should" as used in the Select Committee's report and contended that the use of the word "should" be properly interpreted to leave discretion for the Magistrate and Bhandari J. having relied upon these observations has recognised the discretion on the part of the Magistrate. He further referred to the observations of Modi J. appearing at page 967 (of ILR Raj) : (at p. 304 of AIR), "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 for 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 trial under Section 540 Cr. P. C." My attention was also invited to the penultimate paragraph of Modi J.'s judgment summing up the position in the following words : "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 requirements of Section 207-A 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." In these observations also the emphasis was laid upon the use of the word "should". After very carefully going through the judgment I find it difficult to accept the contention of the learned Government Advocate. I may in this connection point out that Bhandari J. at page 952 (of ILR Raj.) :(at p. 298 of A.IR.) very categorically stated: "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." The reference by Bhandari J. to an extract from the Select Committee's report and the use of the word "should" in the report does not, in my opinion, warrant an inference that Bhandari, J. was recognizing a discretion on the part of the Magistrate. This has to be read along with other parts of the judgment. Dealing with the judgment of Modi, J., I may point out that Modi, J. clearly recognized a statutory duty on the part of the Magistrate to examine all the eye witnesses. Just prior, to the observations relied upon by the learned Government Advocate appear the following observations:- "It is the duty of the Magistrate to examine all eye witnesses, whom the prosecusion selected to produce at the trial and whose names have, therefore, been mentioned in the police report under Section 173, Cr. P. Code and, therefore, it should equally be the duty of the prosecution to produce such witnesses for examination before him otherwise the duty imposed on the Magistrate would be bereft of all meaning." The exceptions mentioned by Modi, J. do not at all suggest that he was inclined to recognise discretion on the part of the Magistrate to examine or hot all the eye witnesses. On a proper, and true interpretation of Modi, J.'s observaions, I am not inclined to hold that he was contemplating those cases where on account of the non-availability of the witnesses the Magistrate is unable to examine all eye witnesses. In such cases, according to him, the Magistrate is competent to commit the accused for trial without examining all the eye witnesses. But a reference to Section 540 Cr. P.C. in his judgment, shows that he was contemplating that the eye witnesses not examined before the Magistrate on account of non availability should be treated as abandoned and the prosecution cannot claim to produce them at the trial as a matter of right. The prosecution, according to him, can only move the Magistrate to call them as court-witnesses under Section 540 Cr. P. C. In my opinion, it is hardly proper to spell out from Modi, J.'s observations that he was recognising discretion on the part of the Magistrate in the matter of examination of eye witnesses. With regard to his latter observations, I need only say that the word "should" was not used to give discretion to the Magistrates and should not be permitted to be unduly emphasised. On a proper interpretation, Ghisa's case, AIR 1959 Raj. 294 : ILR (1959) 9 Raj. 944 categorically denies a discretion to the Magistrate in the matter of examination of eye witnesses.;