P L D 1959 (W (PLP)

From the plain language of this section, it is clear that the Committing Magistrate is under an obligation to take such evidence as may be produced in support of the prosecution or on behalf A of the accused. The Magistrate cannot disregard this mandatory provision of law and cannot decline to record the defence evidence if tendered by the accused. Under subsection (3), the Magistrate is also bound to summon such witnesses as the accused may wish to produce before him. The obvious intention of the Legislature in enacting this provision of law is, to give the accused an oppor tunity to produce his defence evidence even before the framing of the charge, so that the Magistrate while considering the question whether there are sufficient grounds to commit the accused for trial by the Court of Session, may also take into consideration the evidence adduced by the accused. If the Magistrate declines to record the evidence of the witnesses tendered by the accused, he commits an illegality and not merely an irregularity. This B illegality, in my opinion, is not curable under section 537 of the Code of Criminal Procedure, and tire commitment made in disregard of this provision is liable to be quashed. The consensus of judicial opinion is in favour of this view and reference in this connection may be made to the following cases:‑ (1) Jhana v. Emperor A I R 1934 Lah. 610. (2) Jaswant Singh v. King‑Emperor A I R 1924 All. 317. (3) Emperor v. Nga Khaing A I R 1928 Rang. 299.

4. The question, however, which arises in this connection is whether the Magistrate is bound to ask the accused under the provisions of section 208, if he wishes to produce any evidence. No authority was cited at the Bar, nor have I been able to find any, in support of the view that the Magistrate is bound to ask the accused if he wishes to produce any evidence. In my opinion, this is the option of the accused to produce any evidence if he wishes to do so, and for that purpose he can certainly ask the Magistrate to compel the attendance of any witness or the pro duction of any document or thing. It is his privilege to produce any evidence at this, stage if he desires to do so. But as the accused at this stage is not called upon to enter on his defence, the Magistrate is not bound, to question him if he wishes to ~ produce any evidence or to ascertain the names of his witnesses. C There is no direct authority bearing on the point involved. However, the observations of Bhide, J., in Ahmad Din v. Emperor (A I R 1941 Lah. 371) afford some guidance in the solution of the question. The learned Judge observed :‑ "I have gone through the reports of these cases but it seems to me that these cases are distinguishable inasmuch as the accused in those cases apparently had applied to produce witnesses before the committing Magistrate but he had failed to record their evidence. In the present case it does not appear that the accused persons wanted to produce any evidence at all before the learned Magistrate All that section 208 requires is that if the accused wishes to produce evidence, the Magistrate must record the same. In the present case no such request appears to have been made on behalf of the accused. In fact, even after the charge was framed, when the accused were asked to put in a list of defence witnesses, they stated that they did not wish to summon any witnesses even in the Sessions Court. In the circumstances I do not see that the commitment can be said to be vitiated by any irregularity or illegality. I, therefore, decline to set aside the order of commitment." The learned Judge is clearly of the view that it is the accused who should make a request to the Magistrate that he wishes to produce his evidence, and in the absence of such a request, the Magistrate c may proceed to consider the question whether there are sufficient grounds to commit the accused. With all respect I am in entire agreement with this view. The Magistrate, therefore, is not required by law to question the accused if he wishes to produce any evidence under the provisions of section

208. But in all fairness to the accused, who may be completely ignorant of his right, it is desirable that such a question is put to the accused after the close of the prosecution evidence. The proper occasion for putting such a question is before the accused is examined under section

209. This should be a separate question, and the accused does not wish to produce any evidence, then the Magistrate may proceed to examine him under section 209 to enable him to explain any circumstances appearing in the evidence against him. However, the omission by the Magistrate in putting such a question to the accused is neither an illegality nor an irregularity, and, in my opinion, it does not vitiate the commitment.

5. Now, I shall consider the implications of sections 211, 212 and

213. Section 211 reads as follows :‑ "(1) The accused shall be required at once to give in orally or in writing, a list of the persons (if any) whom he wishes to be summoned to give evidence on his trial. "(2) The Magistrate may, in his discretion, allow the accused to give in any further list of witnesses at a subsequent time ; and where the accused is committed for trial before the High Court, nothing in this section shall be deemed to preclude the accused from giving at any time before his trial, to the Clerk of the Crown a further list of the persons whom he wishes to be summoned to give evidence on such trial." The words "at once" in subsection (1) are very significant. They imply that as soon as the charge is framed and has been read and explained to the accused under the provisions of section 210, the Magistrate is bound under subsection (1) of section 211 to require the accused, at once to give in orally or in writing, a list of the persons (if any) whom he wishes to be summoned to give evidence on his trial. The language of subsection (1) being imperative, a failure on the part of the Magistrate to require the accused at once to put in a list of witnesses will render tile commitment liable to be quashed. Having regard to the provisions of subsections (1) and (2), it is perfectly clear that the accused is expected to be ready with the list of witnesses at the time of the framing of the charge, and when after the framing of the charge the Magistrate requires him to give the list, he should either name the witnesses orally or should give the list in writing forthwith. If at that time he does not give in the list immediately, then the Magistrate has a discretion to allow the accused to give in any further list of witnesses at a subsequent time and if a further list is allowed to be filed under subsection (2), then it is to be treated at par with the list furnished under subsection (1). But if no list of witnesses is filed under subsection (1) immediately and the accused does not make a request to the Magistrate 'to allow him to file the list at a subsequent time or he does not file the list within the time allowed by the Magistrate, then the question arises whether the Magistrate can proceed to commit the accused for trial by the Court of Session without recording the statement of the accused if he wishes to file any list of witnesses or not. I am of the view that all that is required under section 211 is only to ask the accused to give in the list of his witnesses. And although section 213 lays down that if the accused has declined to file a list, then the Magis trate may proceed to commit him for trial, it does not mean that the Magistrate is under any obligation to record his statement to that effect. If the accused does not file any list of witnesses forthwith, or within the time allowed by the Magistrate, he shall be deemed to have declined to file the list of witnesses within the meaning of section

213. The word "decline" does not necessarily connote that the accused should have refused by the word of mouth. The meaning of the word "decline" as given in the Oxford Dictionary is as follows :‑ "To turn aside in conduct, to swerve, or fall away from duty, instruction, to avoid, refuse, to withhold oneself from, not to consent or agree to do something, suggested or asked." Having regard to the aforesaid meaning of the word "decline", I think that if the accused does not file the list as required under section 211, he practically refuses to file the list and as such he declines to do so. If, under the circumstances, the Magistrate proceeds to commit the accused for trial by the Court of Session, the procedure adopted by him will not be in violation of the provisions of law and the commitment thus made will not be liable to be quashed on the ground that no statement of the accused declining to file the list is recorded by the Magis trate. However, it is desirable that the Magistrate should make a note of it on the record that the accused has declined to file a list as required by section 211 of the Code of Criminal Procedure. But when the accused files a list under subsection (1) of section 211, or within the time allowed by the Magistrate under subsection (2) of that section, then a duty is cast upon the Magis trate under section 212 to consider the question of exercising his discretion in summoning and examining any witness named in the list. If the Magistrate without being cognizant of his dis cretion in the matter and in complete ignorance of it does not apply his mind at all to the question whether he should summon and examine any of the witnesses named in such a list, then he certainly disregards the mandatory provisions of law and commits an illegality. With a view to exercise his discretion, he should scrutinize the list and decide if he would like to summon and examine any witness named in the list. It may very well happen that in case the Magistrate exercises his discretion in summoning and examining any witness named in the list, he may change his mind after the examination of such witnesses and may not commit the accused for trial by the Court of Session. Sub section (2) of section 213 clearly provides that if the Magistrate, after hearing the witnesses summoned and examined under section 212, is satisfied that there are not sufficient grounds for committing the accused, he may cancel the charge and discharge the accused.

7. These are salutory provisions‑ of law. In commitment cases it appears that the Legislature intended to give full facility to the accused at each and every stage of the inquiry or trial to produce his defence evidence. Before the framing of the charge it is the right of the accused to produce his defence evidence under the provisions of section 208 and it is the duty of the Magistrate to record such evidence, if tendered, and for that purpose the Magistrate is bound to compel the attendance of the witnesses which the accused may wish to produce. But if in spite of the evidence produced by the accused under section 208, the Magis trate is satisfied that there are sufficient grounds for committing the accused for trial, he may proceed to frame a charge. At this stage the accused has again the right to give in the list of his witnesses under the provisions of section

211. And although the accused is not entitled as of right to produce the witnesses named in such a list before the Magistrate, yet the Magistrate may in his discretion summon and examine any of the witnesses named in the list and he is also empowered to cancel the charge and discharge the accused after examining any of these witnesses. But if he decides to commit the accused, then the third stage is reached and the accused has again the statutory right under section 290 read with section 291 of the Code of Criminal Pro cedure to produce his defence at the trial before the Court of Session. It is, therefore, clear that in all serious cases which may be committed, the law protects and safeguards the interests of the accused at each and every stage. The committing Magis trate should, therefore, be very alert in watching the interests of the accused and should refrain from doing anything which might violate the statutory provisions of law contained in sections 208, 209, 210, 211, 212 and

213. The commitment proceedings should be conducted in all seriousness and not by way of routine, as the life and liberty of the accused is at stake.

8. As soon as the list of witnesses is filed under section 211, the Magistrate should with a view to exercise his discretion of summoning and examining any of the witnesses scan the list and apply his mind to decide whether he would like to summon and examine any of the witnesses. It must be clear from the record that the Magistrate has applied his mind to this matter. The decision of the question should be a conscious decision. The Magistrate is, of course, not bound to summon and examine any of these witnesses and the law does not require that he should give any reasons for not summoning the witnesses. But it HIM desirable that he should indicate some reason for not summoning and examining such witnesses so that the higher Courts may be in a position to judge whether the discretion had been exercised judiciously and not arbitrarily. This he should do before he proceeds to make the order of commitment.

9. An authoritative exposition of the law on the subject is to be found in the case Moonda and others. v. The State (P L D 1958 S C (Pak.) 275) where their Lordships of the Supreme Court were pleased to observe as follows :‑ "Moreover, it was pointed out after reference to the Original record that in the matter of giving the accused persons an opportunity to produce defence evidence there had been a violation of the procedure required by the Committing Court. In that Court, some of the accused persons had sought permission to produce defence evidence, under section 208 of the Criminal Procedure Code, which requires the Magistrate to take, `all such evidence as may be produced in support of the prosecution or on behalf of the accused or as may be called for by the Magistrate.' Five witnesses had been summoned for the defence under power given to the Magistrate by sub section (3) of section

208. Thereafter, on the 17th September 1956, the Magistrate framed a charge, and immediately there after committed the accused persons for trial directing them at the same time to put in a list of their defence witnesses. Our attention has been drawn to the provisions of sections 210, 211, 212 and 213 of the Criminal Procedure Code, and it is urged that since in the result an order of commitment was made by the Magistrate his duty after recording evidence under section 208 was to frame a charge and to read it and explain it to the accused as required by section 210, after which it was his clear duty under section 211 to require the accused `at once to give orally or in writing a list of the persons (if any) whom he wishes to be summoned to give evidence on his trial'. Sub section (2) of section 211 gives the Magistrate discretion to allow the accused to put in a further list of witnesses at any later time, but this only serves to emphasize the mandatory nature of the duty imposed by subsection (1), namely, to require the accused at once, after the charge has been framed, to give in a list of witnesses. That this is a substantial duty, and corres ponds to a substantial right is evident from section 212 which empowers the Magistrate in his discretion to summon and examine any witness named in any list given by the accused under section

211. Evidence recorded under section 212 may induce the Magistrate to cancel the charge and discharge the accused as is expressly laid down in subsection (2) of section 213. "The learned Advocate‑General attempted to argue that such right of the accused as the Criminal Procedure Code allows in the relevant respect was satisfied by the summoning and examining of five witnesses for the defence before the framing of the charge, and that as to the actual right of. producing evidence at the trial, that .was allowed to the accused persons by the trial Judge, and was declined. In our opinion, the pro duction and examination of witnesses under section 208 does not by any means constitute compliance with the duty imposed upon the Committing Magistrate by section 211 of the Code which duty must be interpreted as a concomitant of a right vested in the accused to obtain cancellation of a charge framed by a Committing Magistrate by invoking the discretionary power of the Magistrate to receive evidence for the accused persons under section 212 of the Code."

10. The question that remains to be determined is whether the non‑observance of the provisions of section 211 and the omission by the Magistrate to consider the question of exercising the discretion under section 212 renders the commitment liable to be quashed ? This point does not appear to have been raised at all before the Supreme Court and their Lordships have not been pleased to express any opinion about it. However, the views expressed by their Lordships leave no room for doubt that these provisions are of a mandatory nature and create substantial rights and duties. I am, therefore, of the opinion that the pro ceedings taken by a Magistrate in disregard of the statutory provisions of law contained in sections 211 and 212 are illegal N and this illegality is not curable under section 537 of the Code of Criminal Procedure. I am fortified in this view by three Division Bench judgments of the Calcutta High Court reported as: (1) Kashinath Das and others v. Kalipada Das, A I R 1953 Cal. 12. (2) Sripati Duley and others v. State, A I R 1953 Cal. 10. (3) Abanti Pramanik and others v. The State A I R 1953 Cal. 626.

11. In the light of what has been said above, I shall now consider how far the provisions of law have been complied with and what action is called for in the cases referred to by the learned Sessions Judge. I accordingly proceed to consider each case separately.

12. Criminal Revision No. 759 of 1958 : In this case the prosecution evidence was concluded on the 19th of July 1958 and on the same date the statement of the accused was recorded. In answer to the question if the accused wished to produce defence before the Magistrate, the accused had replied that he did not wish to produce any evidence in that Court. Thereafter the charge was framed on the 24th of July 1958 and the accused was required to file the list of the defence witnesses forthwith. It appears from the record that the accused did not file any list of defence witnesses, nor did he request the Magistrate to allow him to file the list at a subsequent time. The commitment order was passed six days later, i.e., on the 30th of July 1958. In my opinion, the procedure adopted by the Magistrate was in conformity with the relevant provisions of law. I, therefore, reject this reference. The records may be immediately sent back to the Court of Session. The learned Sessions Judge should see that the case is tried as expeditiously as possible.

13. Criminal Revision No. 763 of 1955: In this Case the prosecution evidence was concluded on the 19th of July 1958 and the statement of the accused was also recorded on the same day. The accused declined to produce defence evidence in the Court of the Magistrate. Charge was also framed on the 19th of July 1958 and the accused was directed to file the list of defence witnesses within a week. The Magistrate did not wait for the filing of the list and proceeded to commit the accused on the same day. The procedure adopted by the Magistrate, after the framing of the charge was, therefore, in violation of the provisions of sections 211 and 212, and was illegal. I accordingly quash the commitment order and send back the case to the learned Magistrate who is directed to proceed with the case from the stage of the framing of the charge in accordance with law as explained above. The Magistrate is further directed to expedite the proceedings.

14. Criminal Revision No. 764 of 1958: The Prosecution evidence in this case was concluded on the 2nd of July 1958 and the statement of the accused was also recorded on that very date. The accused declined to produce defence evidence at that stage. The charge was framed on the 8th of July 1958 and the accused was directed to submit a list of defence witnesses. On the same date the accused was committed for trial by the Court of Session. After the framing of the charge the accused was not asked to submit the list forthwith as required by subsection (1) of section 211, and as the direction to the accused to file the list of defence witnesses was vague, she might have thought that she could file the list at a subsequent time. The Magistrate, however, did not wait for the filing of the list by the accused and proceeded to commit the accused for trial by the Court of Session. In my opinion, the procedure adopted by the Magistrate after the framing of the charge was not in conformity with the pro visions of section 211 and was illegal. I accordingly quash the commitment order and send back the case to the learned Magis trate who is directed to proceed with the case from the stage of the framing of the charge in accordance with law.

15. Criminal Revision No. 765 of 1958 : The prosecution evidence in this case was concluded on the 30th of May 1958 and no question was put to the accused before the framing of the charge if they wished to produce any defence evidence before the Magistrate. Charge was also framed on the same date and the accused were directed to file a list of defence witnesses forthwith. The accused did not file any list of defence witnesses forthwith, and the Magistrate committed the accused on the same date to stand their trial by the Court of Session. There is no indication on the record to show that the accused had made any request to the Magistrate that they wished to produce any evidence in his Court before the framing of the charge. The procedure adopted by the Magistrate, therefore, was in conformity with the relevant provisions of law. I, therefore, reject this reference. The records may be sent back to the Court of Session with the direction that he should proceed to try the accused in accordance with law.

16. Criminal Revision No. 766 of 1958: The prosecution evidence was concluded on the 15th of July 1958 and before the framing of the charge, the accused declined to produce any defence evidence before the Magistrate. Charge was framed on the 17th of July 1958 and the accused was directed to file a list of witnesses within a week, but without waiting for the filing of the list, the Magistrate proceeded to commit the accused for trial by the Court of Session on the same date. The procedure adopted by the Magistrate after the framing of the charge was, therefore, in violation of the provisions of sections 211 and 212 and was illegal. I accordingly quash the commitment order and send back the case to the learned Magistrate who is directed to proceed with it from the stage of the framing of the charge in accordance with law.

17. Criminal Revisions No. 767 and 768 of 1958: In both these cases the accused had declined before the Magistrate before the framing of the framing of the charge the accused Magistrate to file the list of defence witnesses but without waiting for the filing of the list, the Magistrate proceeded to commit the accused to stand their trial by the Court of Session. The procedure adopted by the learned Magistrate in both these cases was illegal. I accordingly quash the commitment orders in both these cases and send back the cases to the Magis trate who is directed to proceed with the cases from the stage of the framing of the charges in accordance with law.

18. Criminal Revision No. 769 of 1958: In this case the accused declined to produce any defence evidence before the Magistrate. The charge was framed on the 31st of July 1958 and the accused was directed to file the list of witnesses forthwith. It appears that the accused failed to file the list of defence witnesses forthwith and the Magistrate proceeded to commit the accused on the same date. In my opinion, the procedure adopted by the Magistrate was in conformity with the law. I, therefore, reject this reference. The records may immediately be sent back to the Court of Session for proceeding with the trial in accordance with law.

19. Criminal Revisions Nos. 770 and 771 of 1958 : In both these cases the accused declined to produce any evidence before the Magistrate, and after the framing of the charges, the Magistrate directed the accused to furnish the list of witnesses within a week, but without waiting for the filing of the list of defence witnesses, the Magistrate proceeded to commit the accused on the same date in both the cases. The procedure adopted by the Magistrate, in the circumstances of the case, was illegal and I accordingly quash the commitment orders in both the cases and send them back to the learned Magistrate who is directed to proceed with the cases from the stage of the framing of the charge, in accordance with law.

20. Criminal Revisions Nos. 772, 773 and 774 of 1958 : In these cases after the close of tic hr0sccution evidence no question was put to the accused if they wished i e produce defence evidence at that stage. There is however no indication to show that any request was‑made on their behalf that they wishd to produce any defence evidence before the Magistrate. After the framing of the charges in these cases, the accused had been directed to 'file the list of defence witnesses forthwith, but it appears that the accused did not file any list of defence witnesses. And although the accused were committed in these cases on the very day on which charges were framed against them, yet I think the procedure adopted by the Magistrate was unexceptionable. I accordingly reject these references. The records of these cases may be immediately sent back to the Court of Session for proceeding with the trial in these cases in accordance with law.

21. Criminal Revision No. 775 of 1958: After the close of the prosecution evidence, no question was put to the accused if he wished to produce any defence evidence before the Magistrate, but at the same time there is no indication to suggest that the accused had made any request to the Magistrate that he wished to produce any defence evidence. Charge was framed on the 26th of May 1958 and the accused was directed to file a list, if any, and the Magistrate proceeded to commit the accused on the same date. The Magistrate did not direct the accused to file the list of defence witnesses forthwith and the accused might have been under the impression that he could file the list at a subsequent time. The procedure adopted by the Magistrate was, therefore, in contravention of section 211 and was illegal. I accordingly quash the commitment order and send back the case to the learned Magistrate who is directed to proceed with it from the stage of the framing of the charge in accordance with law.

22. Criminal Revision No. 776 of 1958 : After the .close of the prosecution evidence, the accused declined to produce any defence evidence before the Magistrate. Charges were framed against the accused on the 1st of July 1958 and they were directed to file the list of defence witnesses within three days. The accused, however, did not file any list of defence witnesses and the Magistrate then proceeded to commit accused on the 5th of July 1958. It appears that the accused were unable to give the list of witnesses forthwith, and were allowed time under sub section (2) of section 211, to file the list within three days, but even then failed to do so. The Magistrate then proceeded to commit the accused.' The procedure adopted by the Magistrate was, therefore, in conformity with the provision of law. I accord ingly reject this reference. The records may be sent back to the Court of Session for proceeding with the trial in accordance with law.

23. Criminal Revision No. 777 of 1958: In this case no question was put to the accused if he wished to produce any defence evidence before the Magistrate, after the close of the pro secution evidence. However, there is no indication on the record to suggest that the accused had made any request to the Magis trate that he wished to produce any defence evidence at that stage. The accused were charged on the 16th of August 1958 and they were directed to file the list of witnesses by the 18th of August 1958 and the list was actually filed on that date and the Magis trate proceeded to commit the accused for trial by the Court of Session on the 20th of August 1958. He, however, did not consider the question of exercising his discretion under section 212 for summoning any of the witnesses named in the list, and, as such, he contravened the mandatory provisions of law in this respect. I accordingly quash the commitment order and send back the case to the learned Magistrate who is directed to consider the question of exercising his discretion in summoning any of the witnesses named in the list and thereafter to proceed in accor dance with law. A. H. Order accordingly.