The Magistrate has a discretion to examine witnesses, including eye-witnesses, in commitment proceedings, but is not bound to examine all eye-witnesses and can commit the accused on the basis of documents referred to in Section 173 of the Code, unless it is necessary in the interest of justice to take evidence.

R. K. DAS, J.

( 1 ) THIS is an application made by the accused-petitioners for quashing the order of commitment passed by the Sub-Divisional Magistrate, Pan-posh in the district of sundargarh.

( 2 ) ON the information lodged by a Sub-Inspector of Police, Rourkela, a case was instituted alleging that on 21-3-1964 some houses in the Muslim Bustee were destroyed by fire and that some Muslims were killed. After investigation and charge-sheet the petitioners were to be committed to the Court of Sessions for trial under various sections of the Penal. Code. During the committal enquiry, the prosecution did not examine any of the occurrence witnesses whose names found place in the prosecution report submitted under Section 173, Criminal P. C. It appears that though the prosecution took time twice to produce the witnesses, ultimately it expressed its inability to produce any. The learned Magistrate on perusal, of the documents filed along with the prosecution report under Section 173, Criminal P. C. came to hold that it was a fit case for commitment to the Court of Session. He accordingly committed the petitioners for offences under Sections 148, 149, 436 and 302, I. P. C. It is against this order of commitment the present petition has been filed.

( 3 ) THE main contention of Mr. Das, learned counsel for the petitioners, is that the order of commitment is illegal as no occurrence witnesses were examined before the committing Court. Section 207-A, Criminal P. C. lays down the procedure to be adopted in commitment proceedings instituted on police report. Sub-section (4) of this section which is relevant for the present purpose provides that

" (4) 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. "

Thus the procedure laid down in the above sub-section is divided into two parts, that is, firstly the Magistrate shall proceed to take the evidence of witnesses "if any" produced by the prosecution and secondly to examine other witnesses it he finds necessary. It was contended that the expression 'if any' and "as may be produced" used in the aforesaid subsection should not be taken to mean that the magistrate has any discretion in the matter, but if there are any witnesses to the actual commission of the offence, the Magistrate has no option, but to examine them before the commitment is made and in the absence of such examination the committal order is illegal and is liable to be quashed. In fact, this was the view held by this Court in a case reported in State v. Anadi Betankar, AIR 1958 Orissa 241. But this view appears to have been overruled by a later decision of the supreme Court reported in Shri Ram v. State of Maharashtra, AIR 1961 S C 674. Before this decision of the Supreme Court, it appears, the High Courts in India had conflicting views on this question. One view was that under Sub-section (4) the prosecution is bound to examine in the committing court all the eye-witnesses indicated in the police report and the discretion of the Magistrate is only with regard to "the other witnesses for the prosecution" as provided in the 2nd part of the Sub-section (4 ). This was the view taken by the Orissa High Court in the decision stated above as also by the High courts of Mysore (Pavalappa v. State of Mysore (S) A I R 1957 Mys 61); Rajasthan (Ghisa v. State, AIR 1959 Raj 294) and Andhra Pradesh (Chandu Satyanarayana v. State, AIR 1959 Andh Pra 651 ). The other view was that the Magistrate's power to examine the eye-witnesses under the 1st part of the Sub-section (4) was confined only to such witnesses as are produced in Court by the Officer conducting the prosecution and if he has not produced any such witnesses the