State vs Sibe Singh

G.K. Misra, J.

1.Before the committing Magistrate, the Court Sub-Inspector filed a memo declining to examine anyone of the two witnesses to the actual commission of the crime. The committing Court perused the police papers, heard arguments and committed the case to the Court of Sessions without examining any of the eye-witnesses to the occurrence. The learned Sessions Judge relying upon State v. Anadi Betankar 24 (1953) C.L.T. 146, held that the committing Magistrate had no option but to examine the eye-witnesses and without such examination, the commitment was without jurisdiction.

The law laid down in the aforesaid decision is not strictly accurate in view of the decision of the Supreme Court in Shriram and Others Vs. The State of Bombay, , Kirpal Singh Vs. State of Uttar Pradesh, . Section 207-A, Sub-section (4), Code of Criminal Procedure lays down that the Magistrate shall then proceed to take 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 interest of justice to take the evidence of anyone or more of other witnesses for the prosecution, he may take such evidence also. On analysis, the position is clear that if any of the eyewitnesses to the actual commission of the offence are produced by the prosecution, the Magistrate is bound to take their evidence. Even if the prosecution does not produce the witnesses to the actual commission of the offence, the Magistrate must decide for himself if he is to examine any or all of those witnesses in the interest of justice. If after recording reasons, he comes to the conclusion that no such witness need be examined, it is open to him to direct commitment on other materials referred to in Sub-section (G). This position was fully explained in Chintamoni v. State 32 (1966) C.L.T. 599. The learned Sessions Judge should have kept himself in touch with law and followed the correct view.

The learned Sessions Judge''s judgment can, however, be supported on the ground that the learned Magistrate has given no reasons as to why he did not examine anyone of the witnesses to the actual commission of the offence. On that ground alone, the commitment order mast be set aside. The case would go back to the committing Magistrate. He is directed to examine the two eye-witnesses before he records his final order of commitment or discharge.

The reasons different from those which appealed to the learned Sessions Judge, the reference is accepted.