D. M. BHANDARI, J.

( 1 ) THIS is a reference by the Additional Sessions Judge, Tonk, recommending that the order of commitment of the Munsiff Magistrate, First Class, Malpura dated 1612-1957 committing the accused Gheesa and seven others under Sections 307, 148 and 307/149 I. P. C. be set aside.

( 2 ) ACCORDING to the challan, there were eleven eye-witnesses of the incident out of which the prosecution produced only five such witnesses. The remaining eyewitnesses were neither produced by the prosecution, nor were examined by the learned Magistrate. The learned Additional Sessions Judge is of the opinion that under Section 207-A, Sub-section (4), it was the duty of the committing magistrate to take the evidence of all the eyewitnesses and as admittedly he failed to do so, the commitment order was bad and illegal. He has therefore recommended that the committing order be set aside and the case be remanded to the committing Magistrate with a direction to examine all the witnesses to the actual commission of the crime whom the prosecution intends to produce at the trial and then to proceed according to law. This reference came up for hearing before me sitting as a Single Judge and I referred this to a Division bench as there was considerable divergence of opinion on the point involved in the case. Notices were issued to the accused and the Government Advocate, but no one appeared on behalf of the accused. We heard the learned Government advocate, who supported the order of commitment passed by the learned magistrate.

( 3 ) THE main point for determination in this reference is, whether under Subsection (4) of Section 207-A Cr. P. C. , it was incumbent on the committing magistrate to take the evidence of all the eye-witnesses, and as he has failed to do so, the order of commitment is illegal and the commitment should be set aside under our revisional jurisdiction.

( 4 ) SUB-SECTION (4) to Section 207-A relates to the procedure adopted in committal proceedings on a Police report. Sub-section (1) provides that the Magistrate shall fix a date for the purpose of holding an inquiry under that section. Sub-section (2)provides that if at any time before such date, the officer conducting the prosecution, applies to the Magistrate to issue a process to compel the attendance of any witness, or the production of any document or thing, the Magistrate shall issue such process, unless he deems it unnecessary to do so. Sub-section (3)provides that the Magistrate shall satisfy himself that the documents referred to in section 173 have been furnished to the accused, and if such documents, or any of them have not been furnished, he shall cause them to be so furnished. Then comes Sub-section (4) which runs, as follows ;

"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. "

Sub-section (5) provides that the accused shall be at liberty to cross-examine the witnesses examined under Sub-section (4), Sub-section (6) relates to the power of discharge in case the Magistrate is of opinion that the evidence recorded by him and the documents disclose no grounds for committing the accused person for trial. Sub-section (7) deals with the framing of a charge. Then follow the other provisions which are not very material for the purpose of deciding the point at issue.

( 5 ) SUB-SECTION (4) is divided in two parts. The first part makes it the duty of the magistrate to take the evidence of such persons as may be produced by the prosecution as witnesses to the actual com-mission of the offence alleged. The second part grants a discretion to the Magistrate to take the evidence of any one or more of the other witnesses for the prosecutio