Section 540 of the Code of Criminal Procedure applies to proceedings under Section 207A, and the Magistrate has the power to examine witnesses as Court witnesses even if the accused person does not have the right to lead evidence in defence.

JUDGEMENT

GENDRAGADKAR, J. : The principal point which the appellant, the State of West Bengal, has raised for our decision in the present appeal, is whether the provisions of S. 540 of the Code of Criminal Procedure apply to a case tried by the Magistrate under S. 207A of the Code. That question arises in this way. On July 7, 1960, a charge sheet was submitted under S. 123 of the Code by Inspector Bhuromal of the Special Police Establishment, New Delhi, in the Court of the Chief Presidency Magistrate, Calcutta, against Hari Das Mundhra, accused No. 1 and the respondent Tulsidas Mundhra, accused No. 2, under Section 120B/409 and Ss. 409 and 477-A of the Indian Penal Code. On the August 5, 1960, both the accused persons appeared before the learned Chief Presidency Magistrate and furnished bail. Thereafter, the case was transferred to M. Roy, the Presidency Magistrate, 5th Court for further proceedings.

2. On October 10, 1960, copies of the documents were furnished to the accused persons, and since the record was voluminous, the hearing of the case was adjourned to December 7, 1960. On March 1, 1961, parties were heard and in view of the nature of the offences and the amounts involved, the Magistrate took the view that the proper course to follow would be to adopt the commitment proceedings as laid down in S. 207A of the Code. Subsequently, the procedure prescribed by the said section was followed. It appears that accused No. 1 who had in the meanwhile been convicted in another case was undergoing a sentence of imprisonment in the District Jail at Kanpur and so, he could not be produced before the Magistrate until July 7, 1961. That is why the case had to be adjourned on some occasions and effective hearings did not make a material progress until the 7th July.

3. On July 6, 1961, the respondent filed a petition before the Magistrate alleging that amongst the documentary evidence sought to be relied upon against him by the prosecution were included three cheques and the prosecution case was that the writing on the cheques was in the handwriting of the respondent. The respondent disputed this allegation and prayed that he should be allowed an opportunity to examine defence witnesses to prove that the impugned handwriting was not his.

4. On July 7, 1961, when the case was taken up for hearing before the Magistrate, he first considered the application made by the respondent to call defence witnesses and on the merits, he rejected the said application. Then he proceeded to make an order of commitment. In rejecting the application of the respondent for examining defence witnesses, the Magistrate took into account the fact that the application had been deliberately made at a very late stage in order to prolong the proceedings in his Court and so, that was one reason why he thought that an unconscionably delayed petition which had been made solely with the object of gaining time should not be granted. He also held that the application was misconceived. It was urged before the Magistrate that he could examine the said witnesses and in support of this argument, reliance was placed on a decision of the Bombay High Court in the case of Arunachalam Swami v. State of Bombay, (S) AIR 1956 Bom 695. The learned Magistrate took the view that the said decision was distinguishable on facts. Whilst the learned Magistrate was delivering this order, an application was made before him that the respondent wanted to move the higher Court for a transfer of the case, and though the learned Magistrate felt that this application also was intended merely to prolong the proceedings in his Court, he adjourned the case because under S. 526(8) it was obligatory on him to do so. That is why he adjourned the hearing of the case to July 20, 1961 for passing the remaining portion of the final order in case the respondent failed to obtain from the higher Court the necessary order of transfer.

5. This order was challenged by respondent by moving the Calcutta High Court in i