ORDER :- This Rule was issued on the District Magistrate of Bankura to show cause why the order passed by a Magistrate committing these petitioners to the Court of Session for trial for offences under sS.147 and 436, Penal Code, should not be quashed.

2. It appears that information was lodged at the Thana on 20-8-1949, by Rashik Dome alleging that offences under Ss.143 and 436, Penal Code had been committed by a number of persons. The police after an enquiry sent up charge sheet only under S.147, Penal Code, against all these petitioners. After examination of 6 of the prosecution witnesses the learned Magistrate came to the conclusion that the evidence disclosed a case under S.436, Penal Code, and apparently he expressed his decision to enquire into the matter under the provisions of chap. xviii, Criminal P.C. There was a prayer on behalf of the defence that as the charge sheet had been submitted under S.147, Penal Code, they were not prepared for cross-examination at that stage.

Thereafter some more witnesses were examined in chief and after 11 witnesses had been examined in chief they were all cross-examined after which the learned Magistrate examined the accused. On 18-7-1950, the learned Magistrate framed charges against the accused persons under S.147 and 436, Penal Code and passed the following order:

"The accused are charged under S.147/436, Penal Code, and are committed to the Court of Session by an order of commitment herewith. They are all taken in custody to be produced before the Sessions Court as and when directed."

Later in the day a prayer for bail being made the learned Magistrate directed ad interim bail till 31-7-1950. Still later the learned Magistrate passed the following order: "Accused are given 5 days time to submit list of defence witnesses, if any."

3. The two points which have been pressed before us with particular stress by Mr. Dutt on behalf of the petitioners are: (1) that the order of commitment is bad inasmuch as the learned Magistrate failed to follow the procedure laid down in Ss.211, 212 and 213, Criminal P.C., and (2) that the evidence recorded is such that no reasonable man can conclude there from that any offence under S.436, Penal Code, was committed by any of the accused personS.

4. Taking the second point for consideration first we think it sufficient to say for the purpose of this case that after going through the evidence recorded and considering Mr. Dutts argument, we are unable to accept his contention that the evidence is such that no reasonable man can conclude there from that an offence under S.436, Penal Code, was committed by the accused person. Whether if and when the case goes to Sessions, the Jury as the Judges of facts would accept the evidence as satisfactory or not, is a matter which we need not consider and on that we express no opinion. We express no opinion at all as regards the merits of evidence except saying that we are unable to accept Mr. Dutts extreme contention noted above.

5. The other contention raised by Mr. Dutt ought, in our opinion, to prevail. To understand whether the provisions in Ss.211 and 212, Criminal P.C, are matters of substance non-compliance with which should be considered in law to amount to illegality, not curable by S.537, Criminal P.C, it is necessary to examine the scheme in which these two sections appear. Chapter xviii, Criminal P.C. deals with enquiry into cases triable by the Court of Session or High Court and starts with S.206. That section states what Magistrates have the power to commit for trial. Section 207 says that the procedure in the following sections shall be adopted for such enquiries. Section 208 provides that when the accused appears before the Magistrate, the Magistrate shall proceed to hear the complainant and take such evidence as might be produced in support of the prosecution or on behalf of the accused. It contains provisions as regards right of the accused to cross-examine the witnesses and also as regards the issue of proc

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