The Magistrate is bound to record evidence of eye-witnesses and other witnesses in the interests of justice under Section 207-A(4) Cr.P.C. The Magistrate does not have the discretion to dispense with the recording of evidence in cases depending on circumstantial evidence.

MODI, J.

( 1 ) THIS is a reference by the Sessions Judge, Jodhpur, and raised an important question as to the interpretation of Sub-section. (4) of Section 207-A of the Code of Criminal Procedure. This section has been recently introduced into the Code of criminal Procedure by the Criminal Procedure Amendment Act (No. XXVI) of 1955.

( 2 ) THE facts leading up to this reference, may be shortly stated as follows. The prosecution case is that the deceased Jawandan met his death by foul means on or about the 29th April, 1956. He had left his village on the 27th April 1956 to collect some of his debts with his account hooks and certain other papers. Badridan son of the deceased made a first information report to the Additional Superintendent office, Jodhpur, on the 22nd May. 1956, to the effect that his father was missing and that he suspected that he had been killed, and he also named the two accused birda and Likhma among others who might have killed the deceased. A case was eventually registered on the 3rd September, 1956, at police station jhamvar against both of them. The police took up the investigation. The police were not able to discover any witness to the actual commission of the offence alleged. They, however, collected some circumstantial evidence which in their opinion goes to connect the two accused with the crime. It is not necessary for the purposes of this reference to mention the details of this circumstantial evidence. Eventually the police presented a challan against the accused Birda and Likhma in the court of the First Class Magistrate No. 2, Jodhpur. The Magistrate went through tile documents produced by the police under Section 173 Cr. P. C. and examined the accused and heard the prosecution and the accused, but did not record any evidence and committed both the accused to the court of the learned sessions Judge, Jodhpur, having framed a charge against them under S. S02 I P. C.

( 3 ) THE learned Sessions Judge has consequently made this reference with a recommendation that the Magistrate had committed a serious error of law in not having recorded any evidence whatever under Sub-section (4) of Section 207-A, and so the commitment be quashed and the case be sent back to the committing court for a proper compliance with the provisions of Section 207-A (4) Cr. P. C.

( 4 ) THE question which in these circumstances arises is what is the proper interpretation of Sub-section (4) of Section 207-A. This sub-section 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. "

It is plain that this sub-section makes it obligatory for the Magistrate to take the evidence of all such persons as may be produced by the prosecution as witnesses to the actual commission of the offence alleged. There is no option left to toe magistrate so far as this is concerned, and a positive duty has been laid upon him that he should examine all eye-witnesses to the offence such as may be produced by the prosecution before him. The expression "if any" occurring after "persons" in the first part of this sub-section really refers to "witnesses to the actual commission of the offence alleged". The learned Sessions Judge seems to think that the words "if any" refer to such eye-witnesses, who may be present in court and who are intended to be produced by the prosecution as witnesses to the actual commission of the offence alleged. We are of opinion that this is not the correct meaning to be put upon the language of the section. The words "if any" in the context in which, they appear have a reference in one word to the eye-witnesses if any. A question may arise whether the prosecution should produ