When a Magistrate decides to commit a case not exclusively triable by the Court of Session under the power given to him under S. 347 (1) of the Code, he has to follow the procedure laid down in Ch. XVIII of the Code. This includes informing the accused of his intention to commit them for trial and giving them an opportunity to produce defence evidence under S. 208 of the Code.

Judgment

WANCHOO, J. : This is an appeal on a certificate granted by the Allahabad High Court in a criminal matter. The facts of the case may be set out in some detail to bring out the point raised in this appeal.. A complaint was filed by Rajendra Kumar Jain against the four appellants and three others under Ss. 409, 465, 467, 471 and 477A of the Indian Penal Code. It is not necessary for present purposes to set out the details of the complaint. Suffice it to say that after the statement of the complainant under S. 200 of the Code of Criminal Procedure (hereinafter referred to as the Code) summonses were issued to the accused persons requiring them to answer a charge under S. 406 of the Penal Code. Prosecution witnesses were then examined and cross-examined and the statements of the accused persons recorded. The Magistrate then heard arguments on the question of framing of charges which were concluded on 23-9-1954. It was then ordered that the case should be put up on 30-9-1954, for orders. On that date the Magistrate framed charges against the four appellants under Ss. 409 and 465 read with Ss. 471 and 477A of the Penal Code. On the same date the Magistrate ordered commitment of the four appellants to the Court of Session on these charges. The remaining three accused were discharged.

2. There was then a revision petition by Rajendra Kumar Jain against the discharge of one of the three accused, namely, Bhajan Lal. When the matter came up before the First Additional Sessions Judge, Agra, he ordered suo motu on 9-4-1955, after a persual of the commitment order that Bhajan Lal be committed to the Court of session to stand his trial. In view of this order he dismissed the revision petition as infructuous. Thereupon Bhajan Lal went in revision to the High Court. That petition was heard by Roy J., and he set aside the order of commitment of Bhajan Lal and one of the reasons given by him for doing so was that a magistrate was not empowered to frame a charge and make an order of commitment until he had taken all such evidence as the accused might produce before him. As Bhajan Lal had not been called upon to produce evidence in defence the order of commitment made by the Sessions Judge was held to be not in accordance with law. This order was passed on 6-10-1955. Thereupon on 7-1-1956, the four appellants filed a revision petition before the Sessions Judge praying that the order of commitment passed against them be quashed and the main reason advanced in support of this petition was that the learned Magistrate had not observed the mandatory provisions of law laid down in Ss. 208 to 213 of the Code which were essential for a valid commitment. This petition came up before the same first Additional Sessions Judge and he made a reference to the High Court that as the procedure followed by the Magistrate was irregular the order of commitment, dated 30-9-1954, was bad in law, and should be quashed.

3. This reference came up for hearing before another learned Judge of the High Court, namely, Chowdhry J., and he took the view that the Magistrate had not failed to comply with the provisions of S. 208 and that non-compliance with the provisions of Ss. 211 and 212 was curable under S. 537 of the Code. He, therefore, rejected the reference. There was then an application, for a certificate to appeal to this Court which was allowed, particularly, as the view taken by Chowdhry J., was in conflict with the view taken by Roy J., already referred to.

4. The main contention of the appellants before us is that as the case began before the Magistrate as a warrant case under S. 406 of the Penal Code, it was incumbent upon the Magistrate, when he decided, in view of the provisions of S. 347 (1) of the Code, that the case should be committed to the Court of Session, to follow the procedure provided in Ch. XVIII of the Code and inasmuch as he had failed to comply with Ss. 208 to 213 of the Code the commitment was bad in law and should be quashed.

5. The first qu