( 1 ) THESE two references by the learned Sessions Judge of Gyanpur arise out of cross-cases and raise two common questions of law, namely (1) whether under Section 207 A (4), Criminal P. C. , a committal order which is based upon an examination of some and not all of witnesses to the actual commission of the offence alleged is illegal? and (2) whether the prosecution in such a case are precluded from examining in the Court of Sessions a witness who was not examined in the committing Court?

( 2 ) BOTH the references first came up for hearing before our brother Sahai, who referred them to a division Bench in view of the importance of the questions of law involved therein.

( 3 ) THE facts giving rise to the said references are as follows :

At about 7-30 oclock in the morning of 14-11-1956 a lathi fight took place between two factions in the village of Ahimanpur police station Aurai, district Varanasi. Both the parties to the fight lodged reports with the police, which investigated the cross cases and submitted charge sheets in both of them. In the Magistrates court they were numbered as criminal cases Nos. 654 and 642 of 1956. In the former case, there were 16 eye-witnesses but the prosecution examined only three and in the latter case, out of the 17 eye-witnesses the prosecution examined only four. The learned magistrate after perusing those statements and all the relevant documents for the prosecution and giving the accused an opportunity of being heard committed both the cases to the court of sessions where they were numbered as Sessions Trial Nos. 5 and 6 of 1957 respectively. At the outset of the hearing before the learned Sessions Judge, the prosecution were asked to state whether they proposed to examine all the eye-witnesses mentioned in the calendar of witnesses or only those who had been examined before the Magistrate. It was then stated on their behalf that the prosecution intended to examine all the witnesses to the actual occurrence.

( 4 ) THE learned Sessions Judge was, however, of the opinion that under section 207-A (4), the prosecution were bound to examine all the eye-witnesses of the occurrence in the committing court particularly eye-witnesses on whose testimony they proposed to rely in the Court of sessions, and that a committal order which was based upon an examination of some and not all of such eye-witnesses was illegal and liable to be set aside. Hence the aforesaid references.

( 5 ) IN order to appreciate the correct legal position, a reference to the relevant provisions of the amended Code of Criminal Procedure may be made forthwith. Section 207a lays down the procedure which is to be followed in proceedings instituted on police reports and Sub-section (3)and (4) thereof state thus :

"3. At the commencement of the inquiry, the Magistrate shall, when the accused appears or is brought before him, satisfy himself that the documents referred 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 the same to be so furnished.

4. The Magistrate shall then proceed to take the evidence of such persons, if any, and 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. " the interpretation of this sub-section, like that of any other section in a statute, will depend primarily upon the language employed in it. It is only when that language is ambiguous that reference to other recognised canons of interpretation is permissible. Judged in this light the aforesaid sub-section is divisible in two parts. The first part deals with the evidence of persons who are witnesses to the actual commission of the offence, that is to say are eyewitnesses. In their case, a