P L D 1952 Azad J (PLP)

ABDUL MAJID, C. J.‑This order of reference raises a ques tion whether the commitment made by a Magistrate who re corded the confessions of the accused under section 164 Cr. P. C. and whose evidence is to he recorded for the first time in the Sessions Court should or should not be quashed under section 21 3 Criminal P. C. The learned Sessions judge has recommended that the order of commitment should be quash ed and the case be made over to another Magistrate for taking committal proceedings to avoid any injustice being done to the accused on account of the committing Magistrate being an important witness in the case. To support his recommenda tion the learned Sessions Judge has referred to the provisions of section 566 of the Criminal P. C. in which it is laid down that the Magistrate who is personally interested can commit for trial a case only when he has obtained the permission of the Court to which an appeal lies from his order. In my opinion there is nothing in section 556 of, the Criminal P. C. which debars a trying Magistrate from taking committal proceedings in a case in connection with which he has acted in his Magisterial capacity, to wit, he has either recorded the statement of the accused or conducted, an identi fication parade, or recorded a dying declaration, or done some other such thing. In discharging his duty as a Magistrate, one cannot be said to have ‑any personal interest whatever in a particular case. The position of a committing Magistrate as frequently explained is wholly different from that of a Magistrate trying a case. The committing Magistrate cannot be said by any stretch of reason to have any personal interest in the case committed by him for trial to the Sessions Judge. A I R 1932 Lah. 196 and A I R 1945 Pesh. 32 are authorities supporting my view. It is urged that the Magistrate who recorded the confes sion of the accused is examined for the first time in the Court of Sessions judge, then the accused will be deprived of the valuable right of cross‑examining the witnesses twice, i.e., once before the committing Magistrate and for the second time before the Sessions Judge. I do not consider that a Magistrate would be influenced by the highly improper desire to make an attempt to strengthen his evidence in any manner even if he is cross‑examined once and not twice, because what his evidence is to prove is that 13e recorded a particular statement of the accused and in the circumstances he did so, and for that purpose, he has to do nothing more than make a simple straightforward narration of events. I might add that I am of the view that it is not desirable that the Magistrate who has recorded the statement of the accused, should himself preside over the committal proceedings unless it is absolutely necessary for him to do so, because of there being no other Magistrate available for recording the statement of the accused at the place where he is working. I do not find any reason whatso ever in the present case to show that it should not be proceed ed with and the evidence of the Magistrate be taken in due course and as soon as possible. The accused will have ample opportunity to cross‑examine the Magistrate in the Sessions Court and further wasting of valuable time by making over the case to another Magistrate for commitment will be avoided. I, therefore, answer the reference in the negative and direct the Sessions judge to proceed with the trial of the case. A. H. Reference‑answered in negative.