Non-compliance with the provisions of Sections 211 and 212 of the Code cannot be said, in the circumstances of the present case, to have occasioned a failure of justice, and the omission should be held as cured under Section 537 of the Code.

( 1 ) THIS is a reference under Section 438, Cr. P. Code, by the learned 1st Additional Sessions judge of Agra recommending that an order of commitment passed by a 1st class Magistrate, Sri r. K. Rai, on 30-9-1954 be quashed with such directions as this Court may deem necessary. That the commitment in question was by a competent Magistrate is not denied. Such a commitment may be quashed by the High Court only, and only on a point of law. The point of law raised by the reference, and supported, on behalf of the accused and the State but controverted on behalf of the complainant, is that the committing Magistrate failed to comply with the provisions of sections 208, 211 and 212, Criminal P. C.

( 2 ) THE order of commitment in question was made on 30-9-54 by a 1st class Magistrate of Agra in proceedings initiated on a complaint by Rajendra Kumar Jain, Director of the Vir Industries, delhi, against Chadami Lal, Lal Behari, Ram Sarup Gupta, Pearey Lal and three others for offences under Sections 409, 465, 467, 471 and 477-A, I. P. C. It is said that there was a sale, or agreement of sale, of the Bimal Glass Works by Chhadami Lal to the VI Industries in September 1950. The handing over of the Glass Works was however postponed by agreement until 1-5-1951, and during this period the Works were run by the quondam owner Chadami Lal. It was during this period that Chadami Lal and the other accused are said to have committed the offences in question.

( 3 )

( 4 ) AFTER taking cognisance of the offences on the complaint and examining the complainant upon oath, the Magistrate passed an order under Section 204, Cr. P. Code, on 25-2-1954. The order was there appears to be prima facie case. Summon the accused. In the summons issued to the accused it was mentioned that their attendance was necessary to answer to a charge of the offence punishable under Section 486, I. P. C. In the Vakalatnamas filed on behalf of the accused after the service of summons all the aforesaid offences in respect of which the complaint had been filed were however enumerated. The prosecution evidence was closed on 6-8-1954 and 20-8-1954 was fixed for the statements of the accused. On the last mentioned date statements of the accused were recorded and it was stated in the order-sheet that as the accused denied the charges, the case be put up on 28-8-1954 for arguments on the framing of the charge. After certain adjournments and a local inspection arguments were heard on the 16th, 20th and 23rd of September 1954, and the case was ordered to be put up on 30-9-1954. On 30-9-1954 charges were framed in respect of offences under sections 409, 465, 471 and 477-A, I. P. C. , and Chadami Lal, Lal Behari, Ram Sarup Gupta and pearey Lal were committed to the Court of Session to stand their trial in respect of those offences, while the remaining three accused were discharged. The record was received in the Sessions Court in due course but it was not till sometime in january 1956 that 30-1-1956 was fixed for commencement of the trial in that Court it appears that in the meanwhile the matter of discharge of one of the accused was pending and was finally decided on a revision by this Court on 6-10-1955. On 7-1-1956 the application leading to the making of the present reference by the learned Additional Sessions Judge was preferred on behalf of the accused, it has to be seen whether the aforesaid point of law raised in the reference is well-founded and justifies the quashing of commitment.

( 5 ) IN the view of the learned Additional Sessions Judge the learned Magistrate tried the accused as in a warrant case but, on its appearing to him after hearing arguments on the 16th, 20th and 23rd September 1954, that the case was one which ought to he tried by the Court of Sessions, he passed the order of commitment in question under Section 213, Cr. P. Code, without observing the provisions relating to enquiry before commitment provided by Ch. XVIII of the Code, as it was incumben