M. R. A. ANSARI, J. (Oral)

( 1 ) A challan was filed against petitioner Ashok Kumar in the Court of the Judicial Magistrate, 1st Class, Delhi, for an offence under Section 326 Indian Penal Code. The case had to be tried by the procedure prescribed under Section 251-A Criminal Procedure Code. The learned Magistrate, after perusing the documents REFERRED TO to in Section 173 Cr. P. C. and after hearing the counsel for the prosecution as well as for the defence, pasted the following order on 3-6-1972:--

"case called. Accused present. I have perused all the documents mentioned in the report under Section 173 Criminal Procedure Code. and have heard the learned defence counsel and the learned prosecutor at great length. It has been argued by the learned defence counsel that there is absolutely nothing on record to connect accused Ashok Kumar with the commission of the offence. In the statement of complainant Subhash Chander the person who is said to have assaulted Harish Chander is named as Nanhe. It is urged that Ashok Kumar is not Nanhe. The police has erroneously given the alias name of Ashok Kumar ?s Nanhe. deem it to be just in the interest of the proper decision of the case that Subhash Chander and Harish Chander should be examined before arriving at a decision whether a charge against the accused has to be framed or not. Therefore, they be summoned under Section 540 Criminal Procedure Code. To come up on 13-7-1972. "

( 2 ) THE petitioner thereupon filed a revision petition in the Court of Session and contended that the question of either framing a charge against him or of discharging him had to be considered by the learned Magistrate only on the basis of the documents REFERRED TO to in Section 173 Criminal Procedure Code. and that it was not open to the learned Magistrate to examine any witnesses at that stage. This contention was accepted by the learned Additional Sessions Judge and he has submitted a report to this Court with a recommendation that the order passed by the learned Magistrate be quashed and the petitioner be discharged.

( 3 ) THIS petition was first heard by one of us sitting singly, namely, Ansari, J. As there was divergence of opinion between some of the High Courts on the point which arises for determination in the present case and as there was no decision of the supreme Court directly on the point, it was felt by him that it was desirable that this question should be examined by a larger Bench. This is how this case has come before us.

( 4 ) THE learned counsel for the petitioner, Shri Ahluwalia, has raised two contentions before us, namely,-

(I) that the provisions of section 540 Criminal Procedure Code. could not be invoked for examining any witnesses before framing a charge against the petitioner, and (ii) that even if the Court had the power under Section 540 Cr. P. C. to examine witnesses at this stage, this power had been improperly invoked by the learned Magistrate in order to fill up a lacuna in the prosecution case. We shall first consider the first contention raised by the learned counsel.

( 5 ) THE petitioner was being tried under the procedure prescribed by Section 251-A Criminal Procedure Code. The relevant provisions of Section 251-A are sub-sections (1), (2), (3) and (6) which are reproduced below :-

"251.-A (1) When, in any case instituted on a police report, the accused appears or is brought before a Magistrate at the commencement of the trial, such Magistrate shall satisfy himself that the documents REFERRED TO to in section 173 have been furnished to the accused, and if he finds that the accused: has not been furnished with such documents or any of them. he shall cause them to be so furnished. (2) If, upon consideration of all the documents REFERRED TO to in Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard. the Magistrate considers the charge against the accused to

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