MAHENDRA BHUSHAN, J - (1.) IN this revision petition, an important point has arisen as to whether on commitment of a case on complaint, the Sessions Judge has powers to examine those witnesses who were not examined in the committing Court before the issue of process ?
(2.) THE petitioner filed a report in PS. Tibi about the incident of an attempt to murder, but the S. H. O. of the police station concerned did not file a report u/s 173, Cr. P. C. and as such the petitioner moved a complaint on November 30, 1970 in the court of Munsif Magistrate, Hanumangarh. THE learned Magistrate, after holding a preliminary enquiry, took cognizence of the offence u/s 307/149 IPC against the eight accused persons. It appears that two of the accused Bakhsis and Bihan Singh have died. THE committal enquiry under Chapter XVIII, Cr. P. C. (1898) was pending when the Code of Criminal Procedure, 1973 came in to force with effect from 14. 74. In view of the proviso to sub section (2)of S. 484, Cr. P. C. 1973, the committal enquiry was dealt with by the learned Magistrate under S. 208, Cr. P. C. , 197 3, and the case was committed to the court of learned Additional Sessions Judge, Hanuman-garh. During the course of trial before the learned Additional Sessions Judge, Hanumangarh, the petitioner sought to examine three witnesses viz. , Kripal-singh, Sundersingh and the doctor. An objection was taken on behalf of the accused persons that because these persons were not examined as witnesses on behalf of the complainant before the issue of process, cannot be examined by the Additional Sessions Judge. THE learned Additional Sessions Judge under the imdugned order upheld the objection so far as the two witnesses Kripal Singh and Sunder Singh are concerned, but the application of the petitioner for examining the doctor was accepted. The contention of the learned Advocate for the accused is that when the Code of Criminal Procedure, 1973 came into force on 1-4-74, the committal proceedings were pending, and the stage of deciding whether or not there is sufficient ground for proceeding against the accused under S. 200 and 202, Cr. P. C had passed. Therefore, the Learned Magistrate could not have examined the remaining witnesses for the complainant, and he had no option but to commit the case to the Court of Session after complying with S. 208, Cr. P. C. 1973. In surport of his submission, he has placed reliance on a judgement of the Kerala High Court (D. B.), Kochu Mohemmed vs. The State of Kerala (1) In that case, the complaint was filed on 19-4 76 with a schedule of witnesses On being called upon by the Learned Magistrate, the complainant only examined himself. The Learned Magistrate registered the case and directed summons to be issued to all the accused persons Since the offence was triable exclusively by the Court of Session, after seeing that the copies of the documents were furnished to the accused persons, the case was committed. The committal order was challenged in the High Court on the ground that secs. 200 and 202, Cr. P. C, of the new Code have not been followed, in as much as neither all the witnesses for the complainant were examined, nor copies of their statements have been furnished to the accused persons. It was held that it is a discretion of the Magistrate, to postpone the issue of process against the accused till an enquiry is made u/s 202 (1) of the New Code. Therefore, if the Magistrate feels that no enquiry is necessary, he can straight away issue a process after examin-ing the complainant. This authority relied upon by Mr. Purohit does not throw any light on the controveray which is involved in the case. But, that apart, to my mind, the complainant cannot be compelled to produce all his witnesses even in an enquiry under section 202 (1 ). Cr. P. C, for an offence which is exclusively triable by a Court of Session, The words, "produce all his witnesses'* to my mind, only mean to produce such witnesses which he thinks necessary on having been called upon by the Magistrate, to produce all his witnesses. It is not disputed that when the New Code came into force with effect from 1-4-74, the committal enquiry under the old Code was pending. The stage of a preliminary enquiry under S 202 (1) Cr. P. C. , 1973 had passed and the process had been issued. The accused persons were already present before the Court. Therefore, the proviso to s. 202 (1) and proviso to sub-sec. (2) were not attracted to the facts of the instant case, and at that stage the Magistrate could not have called upon the complainant to examing his witnesses in order to decide whether or not there is sufficient ground for proceeding against the accused. All that was expected of him was to see that the copies of the statements recorded u/s 200 or 282, Cr. PC, 1973 of all such persons examined by him and of any documents produced before him on which the prosecution so relies were furnished to the axused. That apart, u/s 311 of the New Code, a Court has got powers at any stage of the trial to summon any person as a witness and the court is bound to summon and examine any such person, if his evidence appears to it to be essential for the just decision of the case. The Learned Additional Sessions Judge has placed reliance on Saram-jodha Udhav and others, petitioners vs. State and others, Respondents (2 ). Though the complaint was pending when the New. Code came into force with effect from 1-4-1974, but the case was committed without following proviso to sub-sec. (2) of Sec. 202, Cr. P. C. it was held that it was not permissible and the commitment was quashed With due respect, I find myself unable to agree with the view taken by the learned Judge. As stated earlier, it the cognizance of an offence exclusively triable by the Court of Session is taken on complaint before 1. 4. 74, then the stage of preliminary enquiry to ascertain whether or not there was sufficient ground for proceeding against the accused has passed and merely because by virtue of proviso to sec. 484 (2-a), the pending enquiry under Chapter XVIII of the Old Code was to be dealt with and disposed of in accordance with the provisions of the New Code, it does not mean to revert to the stage before issuing process u/s 284, Cr. P. C. All that is meant is that from the stage which was existing on 1. 4. 74. , the inquiry is to be dealt with under the New Code, therefore, all that was required of the Magistrate was to have complied with Sec. 208, Cr. P. C. , and to commit the case to the Court of Session. No doubt, previous statement of a witness recorded under S. 202 (1), Cr. P. C, but for that matter reverting to the stage of enquiry in a case where cognizence of an offence has been taken, process issued and accused appears, is not called for under the law. Therefore, I am of the opinion that for an enquiry which was pending under Chapter XVIII, Cr. P. C. , (1896) or when the New Code came into force with effect from 1. 4. 74, in a case in which the stage of issue of process has passed and the process has been issued, the Magistrate, cannot be asked to examine the witnesses of the complainant before committing the case to the Court of Session, if the offence is triable exclusively by a Court of Session. It also appears that by virtue of the proviso to sub sec. (2-A) of sec. 484 of the New Code, the Magistrate is only required in such cases to comply with S. 208, and commit the case to the Court of Session, if the offence is to be tried by it. The Sessions Judge has powers to examine any of the witnesses, who have not been examined by the Magistrate before issuing the process. In the result, this revision petition succeeds. The order of the learned Magistrate refusing to summon Knpal Singh and Sunder Singh is set aside, and the learned Additional Sessions Judge, Hanumangarh is directed to summon and examine Kripalsingh and Sunder Singh as witnesses for the complainant in the Sessions trial. . ;