'959

The State of

Bihar

v.

Hiralal Kejriwal

and Another

Subba Rao ].

'959

736 SUPREME COURT REPORTS [1960(1)]

ground for permitting

the application

tO be filed at a

later stage. In the application for special leave filed

in this Court, though it was stated that the application

filed in

the High

Court for certificate was rejected, the

reason for the rejection was not disclosed. Further,

the State, presumably, filed this appeal to get the legal

position clarified.

We also believe that public interest

does

not require that the stale matter should be

resuscitated.

In the circumstances, we would be

justified

not to exercise our discretionary jurisdiction,

and we accordingly dismiss the appeal.

A ppe<il dismissed.

CHHADAMI LAL JAIN AND OTHERS

v.

THE STATE OF UTTAR PRADESH AND

ANOTHER

(JAFER IMAM, J. L.

KAPUR, A. K. SARKAR and

K. N. WANCHOO, JJ.)

Criminal Trial-Commitment Order-Quashing of-Magistrate

starting trial as in warrant case-Prosecution witness examined and

cross-examined-Charge framed without giving opportunity

to

accused to adduce defence evidence and co1nmitment order passed- -No

intimation to accused of intention to commit-Whether commitment

order illegal-Prejudice--Code of Criminal

Procedure, I898 (V of

I898), SS. 208, 347 and 537.

A complaint was filed against seven persons under ss. 409,

465, 467, 471 and 477A of the Indian Penal Code. After examin­

ing the complainant summonses were issued to the accused to

answer a charge under s. 406. The trial started as in a warrant

case; prosecution witnesses were examined and cross-examined

and the statements of the accused were recorded, and the

Magistrate heard arguments on the question of framing charges.

Thereafter, he framed charges under ss 409 and 465 read with

ss. 471 and 477A, and without giving previous intimation of his

intention to do so

1 passed an order committing the appellants to

the Court of Sessions. The appellants, contended that the

commitment was illegal because the case having begun as a

warrant case it was incumbent upon the Magistrate, when he

decided to commit the case to the Court of Session, to follow the

procedure provided in Ch. XVIII Code of Criminal Procedure,

but he failed to comply with the provisions of ss. 208 to 213 of

S.C.R. SUPREME COURT REPORTS 737

that Chapter. The complainant urged that even if the provi- I959

sions of ss. 208 to 213 had not been complied with no prejudice . .

was caused to

the appellants and the commitment could not be

Chhadami Lal Jain

quashed. v.

Held, that the commitment order was illegal as the Magistrate The State of

had failed to comply with the provisions of s. 208 of the Code of Utlar Pradesh

Criminal Procedure. The proceedings having begun as in a

warrant case, if the Magistrate, at a subsequent stage, was of the

view that the case should be committed to the Court of Sessions,

he

had to act under s.

347(1) of the Code and to follow the

procedure prescribed for inquiries under Ch. XVIII of the Code.

When, in the present case, the Magistrate decided to commit the

case, he should have refrained from framing the charge and

should have informed the accused of his intention to commit and

should have called upon the accused to produce defence evidence,

if any. The failure of the Magistrate

to intimate his decision to

commit to the accused deprived them of the right to produce

defence evidence,

if any, under s.

208. The denial of this right

was itself sufficient to cause prejudice

to the accused and failure

of justice inasmuch as the accused were prevented from leading

evidence which might have induced

the Magistrate not to frame

the charge against them.

Subramania Iyer v. King-Emperor,

(1901) L.R. 28 I.A. 257 ·

Pulukuri Kotayya v. King-Emperor, (1948) L.R. 74 I.A. 65, and'

Narain Rao v. The State of Andhra Pradesh, [1958] S.C.R, 283,

referred to.

CRIMINAL APPELLA'l'E JURISDICTION: Criminal

Appeal No. 143

of 1957.

Appeal from

the judgment and order dated the 8th

May, 1957, of the Allahabad High

Court, in Criminal

Reference No. 149

of 1956, arising out of the judgment

and order dated the 14th January, 1956, of the First

Additional Sessions Judge, Agra, in

Sessions Trial

No.

141 of 1954 and Criminal Misc. No. I of 1956.

G.

S. Pathak and Mohan Behari Lal, for the appel-.

lants.

G.

0. Mnthur, 0. P. Lal and G. N. Dikshit, for the

respondent No.

I.

Jnnnrdcin Sharma, for respondent No. 2.

1959. September 14. The Judgment of the Court

was delivered by

W ANCHOO J.-This is an appeal on a certificate Wanchoo J.

granted by tho Allahabad High Court in a criminal

matter. The facts

of

tho ease may be Rot out in some

738 SUPREME COURT REPORTS [1960(1))

i959 detail to bring out the point raised in this appeal. A

-.-. complaint was filed by Rajendra Kumar Jain against

Chhadam• Lal Jain the four appellants and three others under ss. 409, 465,

Th• ;;.

1

, of 467, 4 71 and 4 77 A of the Indian Penal Code. It is not

uttar Prnde.;h necessary for present purposes to set out the details of

the complaint. Suffice it to say that after the state-

Wanchoo J. ment of the complainant under s. 200 of the Code of

Criminal Procedure hereinafter referred to as the

Code) summonses were issued to the accused persons

requiring

them to answer a charge under s.

406 of the

Penal Code. Prosecution witnesses wei·e then examined

and cross-examined and the statements of the accused

persons recorded.

The Magistrate then heard

argu­

ments on the question of framing of charges which

were concluded on September 23, 1954. It was then

ordered that the case should be put up on September

30, 1954, for orders. On that date the Magistrate

framed charges against the four appellants under

ss. 409 and 465 read withs. 471 and 477A of the Penal

Code. On the same date the Magistrate ordered

commitment of the four appellants to the Court of

Session on these charges. The remaining three accused

were discharged.

'J;'here was then a revision petition by Rajendra

Kumar Jain against the discharge of one of the three

accused, namely, Bhajan Lal. When the matter came

ur before the .First Additional Sessions Judge Agra,

he ordered suo molu on April 9, 1955, after a perusal of

the commitment order that Bhajan Lal be committed

to the Court of cession to stand his trial. In view of

this order he dismissed the revision petition as infruc­

tuous. Thereupon Bhajan Lal went in revision to the

High Court. That petition was heard by Roy, J., and

he set aside the order of commitment of Bhajan Lal

and one of the reasons given by him for doing so was

that a Magistrate was not empowered to frame a

charge and make an order of commitment until he had

taken all we h evidence as the accused might produce

before him. As Bhajan Lal had not been called upon

to produce evidence in defence the order of commit­

ment made by the Sessions .Judge was held to be not

in accordance with law. This order was passed on

S.C.R. SUPREME COURT REPORTS 739

October 6, 1955. Thereupon on January 7, 1956, the z959

four. appellants file~ a revision petition befo;e the Ckhadami Lal Jain

Sessions Judge praymg that the order of commitment v.

passed against them be quashed and the main reason The state of

advanced in support of this petition was that the Uttar Pradesh

learned Magistrate had not observed the mandatory

provisions oflaw laid down in ss. 208 to 213 of the Code Wanchoo I·

which were essential for a valid commitment. This

petition came

up before the same First Additional

Sessions

Judge and he made a reference to the High

Co11rt that as the procedure followed by the Magis.

tr~te was irregular the order of commitment, dated

September 30, 1954, was bad in law, and should be

quashed.

This reference came

up for hearing before another

learned

Judge of the High

Court, namely, Chowdhry, J.,

and he took the view that the Magistrate had not

failed to comply with the provisions of s. 208 and that

non-compliance with the provisions of ss. 211 and 212

was curable under s. 537 of the Code. He, therefore,

rejected

the reference. There was then an applica.

tion for a certificate to appeal

to this

Court which

was allowed, particularly, as

the view taken by Chowdhry, J., was in conflict with the view taken by

Roy; J., already referred to.

The main contention of the appellants before us is

that as the case began before the Magistrate as a

warrant case under s. 406 of the Penal Code, it was

incumbent upon

the Magistrate, when he decided, in

view of the provisions of s. 347 (1) of the

Code, that

the case should be ·committed to the Court of Session,

to follow the procedure provided in Ch. XVIII of the

Code and inasmuch as he had failed to comply with

ss. 208 to 213 of the Code the commitment was bad in

law and should be quashed.

The first question that falls for consideration, there­

fore, is whether the Magistrate when he began this

case, was proceeding in the manner provided for the

trial of warrant cases. Section 347 (1) of the Code

comes into play when at any stage of the proceedings

in any trial before a Magistrate, it appears to him

that the case ought to be tried by the Court of

740 SUPREME COURT REPORTS [1960(1)]

i959 Session ; he has then to commit the accused under the

- provisions herein before contained. The Sessions

ChhadamiLal Jain Judge who made the reference held that the case

Th ;·

1 1

before the Magistrate 'proceeded from the beginning

Utt;, p::a:sh as if it was a trial of a warrant case. It was on that

basis that the Sessions Judge held that when' the

wanchooJ. Magistrate made up his mind that the case ought to

be committed to the Court of Sessions in view of the

provisions of s. 347(1) of the Code it was his duty to

observe the procedure laid down in Ch. XVIII, parti­

cularly, under ss. 208, 211 and 212 of the Code. The

order of reference was sent to the Magistrate for

explanation,

if any, and the Magistrate replied that he

had no explanation to submit. He did not

say)n his

explanation that he was not proceeding as in a

warrant case and that the proceedings before him

throughout were proceedings in the nature of an in­

quiry under Ch. XVIII. W'hen, however, the matter

came up before the High Court, Chowdhry, J., was of

opinion that though the Magistrate was competent to

try the case as summonses has been issued under

s. 406 I. P. C. only, it was open to him to hold an

inquiry under Ch. XVIII from the very beginning in

view

of the provisions of s.

207 which empower a

Magistrate to follow the procedure provided in

Ch. XVIII in cases exclusively triable by a Court of

Session and also in cases which are not exclusively

triable

by the

Court of Session . but which in the

opinion of the Magistrate ought . to be tried by such

Court. The High Court was further of the view that

the offence mentioned in the summons should be

deemed

to have given notice to the accused that it

was optional with the Magistrate to hold an inquiry

with a view to commit them to the

Court of Session

or to try them himself as in a warrant case because

column 8

of

Schedule II of the Code says that a case

un<ler s. 406 is triable by a Court of Session, Presi­

dency Magistrate or Magistrate of the first or second

class. Therefore, according

to the High

Court the

matter was at large whether the Magistrate was going

to adopt one procedure or the other despite the issue

of summonses under s. 406 of the Penal Code and that

S.O.R. SUPREME COURT REPORTS 741

nothing had happened to induce the belief in the z959

accused that they would be tried as in a warrant case. Chh -:-L

11

.

. C h h adami a . "'"

The High ourt, t erefore, held that t e case was pro. v

ceeded with from the beginning as if it was an inquiry Th• s;at• of

under Ch. XVIII and on that view it held that there Uttar Pradesh

was no non-compliance with s. 208 of the Code. As

for non-compliance with ss.

211 and 213, the High

Wamhoo f.

Court was of the view that it was curable under s. 537

of the Code as no prejudice was caused.

We must say with respect that this view of the

nature of the proceedings before the Magistrate is not

correct. It is true that it is open to a Magistrate to

hold an inquiry from the beginning under Chapter

XVIII in a case not exclusively triable by the Court

of Session. But the mere fact that the Magistrate

has such power does

not necessarily indicate to the

accused that he is holding an inquiry under

Ch. XVIII

rather than a trial before himself. Where the case is

not exclusively triable by the Court of Session, the

accused would n,aturally conc1ude that the proceedings

before

the Magistrate are in nature of a trial and not

an inquiry under

Ch. XVIII. If the Magistrate

intends to use .his powers under s. 207 and hold an

inquiry from the beginning in a case not exclusively

triable

by the

Court of Session, the only way in which

the accused can know that he is holdillg an inquiry

and not a trial is by the Magistrate informing the accus­

ed that he is holding an inquiry under Ch. XVIII and

not trial. If he fails to do so, the accu.sed can reason­

ably conclude that a trial is being held. In this case

undoubtedly

the Magistrate did not indicate to the

accused from the beginning that his proceedings were

in the nature of an inquiry under

Ch. XVIII. There­

fore the accused would naturally conclude that the

proceedings before him were in the nature of a trial of a

warrant case as the summonses that they had received

were under

s. 406 of the

Penal Code only. The fact

that in the complaint s. 467, which is exclusively

triable

by a

Court of Session, was mentioned is of no

consequence for

the summonses to the accused were

only for a trial under

s.

406 of the Penal Code. It

must, therefore, be held that the :proceedin~s before

9t

742 SUPREME COURT REPORTS [1960(1)]

'959 the Magistrate began a.s in the trial of a warrant ca.se

Chhadami Lal Jain and ifd!he Ma.gistfrahte a~ a. suhbseqhuent stage of the

v. procee mgs was o t e view t at t e case should be

The State of committed to the Court of Session, he would have to

Ullar Pradesh act under s. 347 (1) of the Code. We have been a.t

pains to refer to this aspect of the matter for considera.-

Wamhoo J. tions would be different if the case was exclusively

triable

by the

Court of Session and began from the

outset as

a.n inquiry under

Ch. XVIII. Wha.t we shall

say hereafter must, therefore,

be taken to apply only

to a case which began as a proceeding in a warrant or

summons case a.nd in which the Magistrate at a. later

stage

takes action under s. 34 7 ( 1 ).

This brings us to a consideration of the duty of the

Magistrate who takes action under s. 347 (1) of the

Code. That section reads as follows :-

" If in a.ny inquiry before a. Magistrate or in a.ny

trial before a. Magistrate, before signing judgment, it

appears to him at any stage of the proceedings tha.t

the ca.se is one which ollght to be tried by the Court

of Session or High Court, and if he his empowered

to commit for trial, he shall commit the accused

under

the provisions hereinbefore contained."

The first question

that ha.s to be decided

is the

meaning of the words "under the provisions herein­

before contained". These words have been the subject

of decision by a number of High Courts a.nd the High

Courts are unanimous that they mean that if the

Magistrate decides at some stage of the trial to commit

the accused, he has to follow the provisions contained

in Ch. XVIII. It is not necessary to refer to those

decisions for

the words themselves a.re quite

clear.

They lay down that if the Magistrate comes to the

conclusion that the accused ought to be committed for

trial, he shall commit in accordance with. the provi­

sions contained in the earlier part of the Code, namely,

in Ch. XVIII. This of course does not mean tha.t

the Magistrate must begin over a.gain from the begin­

ning. All that he has to do when he decides tha.t

the case ought to be committed is · to inform the

accused a.nd see that the provisions of Ch. XVIII a.re

complied with liO fa.r a.s they ha. ve not been complied

S.C.R. SUPREME COURT REPORTS 743

with up to the stage at which he decides that there z959

ought to be a commitment. Now the procedure under Chh d . L

11

.

Ch. XVIII is laid down in ss. 208 to 213 of a am~. " am

the Code. The Magistrate begins by hearing the The State of

c:omplainant, if any, and takes all evidence that Uttar Pradesh

may be produced in support of the prosecution or on

behalf of the accused or as the Magistrate may call Wanchoo f.

himself. The Magistrate is also required to issue

process

to compel the attendance of any witness or the

production of any document or other thing if the com-

plainant or officer conducting the prosecution of the

accused applies to him. After the evidence under

s. 208 has been taken

the Magistrate then examines the

accused for the purpose of enabling him to explain any

circumstances appearing in evidence against him under

s. 209. Thereafter if he is of opinion that there are

not sufficient ground& for committing the accused for

trial, he

can discharge him unless it appears to him

that such person should be tried before himself or

some

other Magistrate in which case he has t9 proceed

accordingly.

On the other hand, if the Magistrate is

of opinion after taking the evidence and examining the

accused that there are sufficient grounds for commit-

ting the accused for trial, he has to frame a charge

under s. 210 declaring with what offence the accused

is charged. The charge is

then read over and explained

to the accused and a copy thereof, if he so requires, is

furnished

to him free of cost. After the charge is

framed

the Magistrate calls upon the accused under

s. 211 to furnish a list of persons orally or in writing

whom he wishes

to be summoned to give evidence on

his trial. The Magistrate may also allow the accused to

furnish a further list at a later stage in

pis discretion.

Section 212 gives power

to the Magistrate in his discre-

tion

to summon and examine any witness named in

any list under s. 211. Then comes s. 213 which lays

down

that if the accused has refused to give a list as

required

by s. 211 or if he has given one and the

witnesses, if any, included therein whom the Magistrate

desires

to examine, have been summoned and examined

under

s. 212 the Magistrate may make an order com-

mitting the accused for trial by the High Court or the

744 SUPREME COURT REPORTS [1960(1)]

'959 Court of Session and shall also briefly record the reasons

Chlad -:-;al

1

.

for such commitment.

On the otherhand,ifheissatis­

' am~. •in ~ed after hearing the witnesses for the defence that

The state of there are not sufficient grounds for committing the

Uttar Pradesh accused, he may cancel the charge and discharge the

Wanchoo ].

accused.

It will be seen from this analysis of the provisions

relating

to commitment that s.

208 gives a right to the

accused to produce evidence in defence before the

Magistrate examines him under s. 209 and proceeds to

frame a charge under s. 210. Now when a Magistrate

makes up his mind to commit a case not exclusively

triable

by the

Court of Session. under the power given

to him under s. 347 (1) of the Code, he has to follow

this procedure. But as we have said earlier it is not

necessary that the Magistrate should begin from the

beginning again when he so makes up his mind. The

Magistrate may make up his mind at any stage of the

trial before him and generally speaking four conting­

encies may arise. Firstly, he may make up his mind

after the 'trial is practically over and the witnesses

for

the prosecution have been examined and

cross­

examined after the charge, the accused has been

examined both under ss. 253 and 342 of the Code

and and all the defence evidence has been taken. In

such a case ss. 208, 209 and 210 have been complied

with and all that the Magistrate has to do is to inti­

mate to the accused that he intends to commit him

for trial and ask him to give the list of witnesses under

s. 211 and proceed thereafter as provided in Ch. XVIII.

Secondly, the Magistrate may make up his mind after

all the witnesses for the prosecution have been examin­

ed and cross-examined and the charge has been framed

but no defence has been taken. In such a case that

part of s. 208 which lays down that all the evidence

for

the prosecution shall be taken, has been complied

with and the Magistrate may then proceed to comply

with the rest of section

208 and take the defence evid­

ence.and then proceed further under ss. 209 to 213 and

amend the charge so as to make it conformable to a

charge

in an inquiry under

Ch. XVIII or cancel it.

Thirdly,

the Magistrate may make up his mind after

S.C.R. SUPREME COURT REPORTS 745

some of the prosecution witnesses have been examined x959

and cross-examined and a charge has been framed. In Chh d -:-L

1 1

. . fh

aamiaasn

such a case he has to examme the rest o t e prosecu- v.

tion witnesses under s. 208 and take the defence evid-The state of

ence, if any, produced by the accused and then proceed Uttar Pradesh

under ss. 209 to 213 amending or cancelling the charge

already framed as indicated earlier. Lastly, the Wamhoo].

Magistrate may have only just begun taking evidence

for

the prosecution and may not have framed

a charge.

In such a case he takes the rest of the prosecution

evidence

and complies with the provisions from ss.

208

to 213. But in each of these four contingencies it is

the duty of the Magistrate to intimate to the accused

that he has made up his mind to commit in view of the

provisions of s. 347(1) and then proceed in the manner

indicated above. It is necessary that the accused

should know when

the Magistrate makes up his mind

to commit so that their right under s.

208 to produce

defence,

if any, before commitment is made is safe-

guarded.

Now

what happened in this case was this. The

Magistrate had apparently taken all the prosecution

evidence

and the prosecution witnesses had been examin­

ed

and cross-examined ; the Magistrate had framed

no charges upto September

30, 1954. He had heard

arguments on

the question whether any charges should

be framed and had fixed September

30, 1954, for orders

in this respect. When, therefore, he decided on

September 30, 1954, that the case ought to be commit­

ted to the Court of Session, the proper course for him

was

to refrain from framing any charges and intimate

to the accused that he intended to commit them for

trial.

He then should have called upon them to pro­

duce

defem::e evidence, if any, under s. 208 and then

proceeded further under Ch. XVIII. The Magistrate,

however, failed to inform the accused that he had

made up his mind to proceed under s. 347 (1) and to

commit them for trial. What he did on September 30,

1954, was to frame charges forthwith and record an

order committing the accused to tl1e Court of Session

under s. 213

of the

Code. He thus deprived them of

their right to lead defence evidence, if any, under

s. 208. It may be that if he had told them that he was

746 SUPREME COURT REPORTS [1960(1))

'959 going to proceed under s. 347 (I) and commit them for

Chhadami 7.ai Jain trial and asked them if. there was any defence evidence

v. to be produced, they might have said that they did not

The state of wish to produce any defence before him at that stage.

Uttar Pradesh But what the accused would have said if the Magis­

trate had proceeded in this manner is irrelevant in

Wanehoo]. considering the question whether the commitment in

this case was bad in law inasmuch as it did not comply

with s. 208 so far as giving the accused an opportu­

nity to lead defence evidence, if any, was concerned.

The fact remains, therefore, that in this case the Magis­

trate when he decided to act under s. 347 (1) did not

intimate that decision to the accused and proceeded

forthwith

to commit them for trial under s. 213, thus

depriving them of the right to produce defence

evidence,

if any, under s.

208.

The next question which falls for consideration is

the effect of this non-compliance with s. 208 of the

Code and whether it is curable under s. 537 of the Code.

The effect of non-compliance with variqus provisions

of the Code and whether such non-compliance is cur­

able under s. 537 have been the subject of a large

num her of cases before various High Courts and also

before

their Lordships of the Judicial Committee of the

Privy Council. It is not necessary to refer to this

mass of authorities.

One of the earliest of these case

decided

by the Privy Council is Subramania Iyer v.

King-Emper:.or('), while one of the latest is Pulukuri

Kotayya v. King-Emperor('). The law was summed up

by their Lordships of the Judicial Committee in

Pulukuri Kotayya's

case (2) at p. 75 in these words:

" When a trial is conducted in a maner different

from

that prescribed by the

Code (as in N.A. Subra­

mania Iyer' s case (

1

), the trial is bad, and no question

of curing an irregularity arises ; but if the trial is

conducted substantially in

the manner prescribed by

the

Code, but some irregularity occurs in the

"course of such conduct, the irregularity can be

cured

under s. 537, and none the less so because the

irregularity involves, as must nearly always be the

case, a breach of one or more of the very

compre­

hensive provisions of the code. The distinction

(1) (1901) L.R. 28 I.A. 257. (z) (19<18) L.R. 7" I.A. 65.

S.C.R. SUPREME COURT REPORTS 747

drawn in many of the cases in India between an x959

illegality and an irregularity is one of degree rather Chh d ~

1 1

.

h f k

. d

Th" . fi d . th a ami a ain

t an o m . is view n s support m e v.

decision of their Lordships ' Board in Abdul The Stale of

Rehman v. The King-Emperor (1) where failure to Uttar Pradesh

comply with as. 360 of the Code of Criminal Proce-

dure was held to be cured bys. 535 and 537." Wanchoo f.

These observations were quoted with approval by this

Court in Narain Rao v. The State of AndhraPradesh(

2

).

It seems, therefore, fruitleis to consider whether the

non-compliance with s. 208 in this case is an illegality

which cannot be cured under s. 537 or an irregularity

which is curable thereunder. As the stage of trial

has not been reached in this case, no question arises

of considering whether the trial has been conducted

in a manner different from that prescribed by the

Code. What we have to see is whether the breach of

s. 208 which has occurred in this case is such that the

Court will presume prejudice to the accused by the

mere fact of the breach. If such presumption can be

made,

the breach would obviously be not curable

under s. 537 of the

Code, even assuming that that

section applies. The question, therefore, which event­

ually emerges is whether this breach of s. 208 is of

such a character that the Court wilt presume that

there has been prejudice to the accused by the mere

fact of the breach. Now the accused has a right

under s. 208 to produce evidence ir. defence, if any,

before. the Magistrate proceeds to decide whether a

char~e should be framed or not. The Magistrate's

decision

whether the charge should be framed or not

is bound to be affected one way or the other if

evid­

ence is produced by the accused, for the Magistrate

would

then

be bound to consider the effect of that

evidence on the question of framing the charge. If

the accused is denied the opportunity of leading that

evidence which he has a right to do under s. 208, it

seems to us that the denial of such right is sufficient

to cause prejudice to the accused and s. 537 would

have no application to a case of this kind. The pos­

sibility that the accused may not have produced defence

if asked by the Magistrate whether he would do so,

(1) (1926) L.R. ~ .. I.A. 96. (2) [19~8] s.c.~. 28~.

748 SUPREME COURT REPORTS [1960(1)]

i959 is of no consequence, so far as this conclusion is

Ch/Jada --:-Lal

1

.

concerned. If this is the reply expected, it makes it

m;. ••n all the more incumbent on the Magistrate to inform

The stat• of the accused that he was intending to commit the

Uttor Pradesh case and ask him if he wished to produce evidence.

If the accused did not want to do so, the Magistrate

wanchoo J. would have done his duty and his way would be clear

to proceed further with his intention to commit the

accused. But when the Magistrate did not intimate

to the appellants in this case that he was intending to

commit them for trial and proceeded to frame charges

and pass the order of commitment forthwith on

September 30, he was denying to them their right to

produce defence under s. 208 of the Code. The denial

of that right is in our opinion in itself sufficient to

cause prejudice to the accused and failure of justice

inasmuch as

the accused were prevented from leading

evidence which

might have induced the Magistrate

not to frame

a charge against them or cancel it. We

are, therefore,

of opinion that the breach of s.

208

which took place in this case was such as was bound

to cause a failure of justice and there is, therefore,

no question

of the application of s. 537 in these

circumstances. The commitment is, therefore, bad

in law

and must be quashed on this ground alone.

In the petition of appeal the appellants have

refer­

red also to breach of provisions of ss. 211, 212 and 213

of the Code. As ·we have come to the conclusion

that the breach of s. 208 in this case is sufficient

to invalidate the commitment it is not necessary to

consider the effect of the further breach of ss. 211,

212

and 213. What we have said in this case with

respect to the effect of the breach of s.

208 may not

be taken as applying to the breach of ss. 211, 212 and

213 for the considerations arising out of those brea­

ches may be different.

We, therefore, allow

the appeal, quash the order

of commitment as well as the charges framed and send

the case back to the Magistrate to proceed in the

manner indicated above according to

law.

Appeal allowed.