The main legal point established in the judgment is the mandatory nature of the provision in S.207-A, Criminal Procedure Code, requiring the production and examination of witnesses to the actual commission of the offence alleged before the committing Magistrate.

1. This is a reference made by the learned Sessions Judge of Trivandrum under S.438, Criminal Procedure Code, recommending to this court that the order made by the learned Second Class Magistrate of Neyyattinkara, in P.E. No. 8 of 1955 on his file, committing the two accused persons in that case for trial before the court of Sessions for commission of offences punishable under S.302 and 341, 201 and 34 I.P.C., should be quashed on account of the learned Magistrate's failure to comply with the provisions in sub-s. 4 of S.207-A, Criminal Procedure Code. The case was instituted on a police report and with reference to cases triable by the court of Sessions or High Court when the initiation of the proceeding is by such a report, S.207-A, introduced into the Code by S.29 of the Amendment Act XXVI of 1955, provides a more simplified form of procedure than before. Sub-s. (4), with which alone we are concerned here, is in these terms:

"The Magistrate shall then proceed to take the evidence of such persons, if any, as may be produced by the prosecution as witnesses to the actual commission of the offence alleged; and if the Magistrate is of opinion that it is necessary in the interests of justice to take the evidence of any one or more of the other witnesses for the prosecution, he may take such evidence also."

2. The order of committal passed by the learned Second Class Magistrate is on the strength of the records furnished to the accused as provided in S.173(4), as amended by Act XXVI of 1955 and without himself recording any evidence. On reading the committal order the learned Sessions Judge felt a doubt whether regard being had to the fact that the case was one where the prosecution was depending upon the evidence of witnesses to the actual commission of the offences alleged, the prosecution was justified in not producing those witnesses for examination before the Magistrate and whether the Magistrate rightly proceeded to pass the committal order without examining them at least, even if he felt that the discretion vested in him under the latter part of the sub-section, that is "to take the evidence of any one or more of the other witnesses for the prosecution" need not be invoked. The learned judge therefore issued notices to the Public Prosecutor and to the accused to hear the question as a preliminary point and after hearing them passed the order of reference now before us. The reasoning of the order is contained in Para.2 thereof and that reads:

"It seems to me, that on a proper reading of sub-s. 4 of S.207-A, the Magistrate is bound to proceed to take the evidence of witnesses relating to the actual commission of the offence alleged, and that no discretion is left to him in this matter, his only discretion being in respect of the examination of other witnesses. The object of the section appears to be, to give notice to the accused of what the principal witnesses are expected to speak to and to enable the accused at the trial to test their veracity by comparing their testimony at the trial with the evidence recorded by the Magistrate. This object cannot be served on account of the failure of the Magistrate to comply with the section, the failure may occasion prejudice to the accused at the trial, which has to be avoided."

3. If we may say so, the sub-section is not very happily worded and the difficulty to construe it has been felt by every commentator of the Code as amended by Act XXVI of 1955. On a careful reading of the sub-section to our minds it would appear that what it enacts is that when the proceeding before the committal court has passed the stages mentioned in sub-ss.1 to 3 and reached the stage envisaged in sub-s. 4, that court shall take the evidence of the witnesses to the actual commission of the offence alleged, while it is discretionary whether any other witnesses should be examined or not. The words, 'if any' in the sub-section really present difficulties. A close reading of the sub-section will, howeve