1969 P Cr (PLP)

9. The Supreme Court, as it appears from the above observation held there that the Magistrate has a duty under section 211, Cr. P. C. to ask the accused to give a list of his witnesses to obtain cancellation of the charge framed against him but the Supreme Court in the said case, if we are permitted to say so, did not say anything about the effect of non‑compliance of section 211, Cr. P. C. Nothing has been said in that case as to whether such failure is an irregularity of curable nature or illegality vitiating the commitment. As a matter of fact the Supreme Court did not also quash the commitment in that case on the ground of failure of the Magistrate to comply with the provision of section 211 of the Code. The case of Moonda and others v. The State referred to above does not, therefore, help the petitioner.

10. The records of the instant case show that the accused did not at all avail of the provision of section 208, Cr. P. C. He did not examine any witness under that section during the enquiry. The accused while examined under section 209 of the Criminal Procedure Code on 27‑4‑67 was specifically asked as he replied in the affirmative. The learned Magistrate then fixed the case for hearing and defence on 18‑5‑67, but the accused did not adduce any defence witness. Thereafter the arguments for the prosecution as well as for the defence were heard on 18‑5‑67, 8‑6‑67 and 20‑6‑67 and the case was fixed for orders and framing of charges on 12‑7‑

67. At that stage the accused‑petitioner filed a petition for adjournment on the ground of illness and in the meantime moved the Sub -Divisional Magistrate for transfer of the case. The prayer for transfer having been rejected the case was taken up by the learned Inquiring Magistrate on 22‑7‑

67. On that date the charges were framed against the accused and read over and explained to him. On hearing the charges the accused pleaded not guilty and claimed to be tried in the Court of Session and then the commitment order was passed. The question raised above shall have to be judged in the light of facts and circum stances of the case stated herein.

11. A careful perusal of sections 212 and 213 of the Criminal Procedure Code will show that the main purpose of asking the accused under section 411 of the Code to forthwith furnish a list of defence witnesses is to obtain cancellation of the charges framed by the Committing Magistrate by invoking the discretionary power of the Magistrate to receive evidence for the accused under section 212 of the Criminal Procedure Code. But in a case where the accused did not avail of the benefit of section 208 of the Code nor adduced any evidence consequently on a date fixed for the purpose and ultimately, on perusal of the charges, claimed to be tried by the Court of Session or in other words where the accused was all-through reluctant to adduce defence witnesses and he prepared himself mentally to go before the Court of Session to face the charges prepared by the Magistrate, the question of cancellation of the charges on taking a list of defence witnesses and examining some of them at the discretion of the Magistrate, in such circumstances, is immaterial. The plea of the accused claiming right to obtain cancellation of the charges by the Committing Magistrate himself, in the circumstances, does not arise.

12. The question of non‑compliance of provision of, section 211 of the Code in each case shall be decided by its own factors. The accused had ample opportunity to defend himself but he did not avail of the same. He claimed to be tried in the Court of Session. There were also attempts to delay the proceedings. So in the background of the facts, the failure on the part of the Committing Magistrate to put such a question after framing of the charges is not so material as the accused is not prejudiced thereby in any way and the irregularity, if any, does not cause any miscarriage of justice in the case. In this connection we may profitably refer to the case of Ibrahim and others v. The State (P L D 1961 S C 200) where the above case of Moonda and others v. The Stare has been discussed and distinguished. In that case on a question whether the failure on the part of the Committing Magistrate to ask the accused to give a list of defence witnesses after framing of the charges against them rendered the trial illegal, the Supreme Court observed as follows:‑ "The duty imposed upon the Committing Magistrate by section 211 of the Criminal Procedure Code, 1898, no doubt, 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, but here each of the accused persons when questioned before the charge had made it clear that he did not wish to produce any defence evidence at any stage earlier than the trial in the Sessions Court. In other words, each of the accused persons was prepared to trial on the charge which the Magistrate was proposing to frame, and there was, therefore, no question of his claiming a right to obtain cancellation of the charge by the Committing Magistrate himself."

13. We respectfully agree with the above observation. The Supreme Court in that case did not set aside the order of commitment or the order of conviction on trial. The effect there fore, is that in the given circumstances the commitment or the trial was not vitiated. Judging the facts of the present case, in the light of the above observation, we hold that the point raised by the learned Advocate has no force.

14. By referring to Pakistan Criminal Law Amendment (East Pakistan Amendment) Act (Act III of 1967), the learned Advocate has lastly contended that the accused being the Managing Director of the Delta Jute Mills is a public servant and the learned Magistrate has no jurisdic tion to enquire and hold the committal proceeding and the alleged offence being exclusively triable by the Special Judge appointed under Criminal Law (Amendment) Act, 1958, the commitment is bad in law.

15. This contention, is in our opinion based on misconcep tion, section 3 of the Pakistan Criminal Law Amendment (East Pakistan Amendment) Act, 1967, on which the learned Advocate relies, reads as follows: (i) in clause (a), for the words and commas "by an organisa tion or body corporate notified by the Central Government, in pursuance of the next succeeding clause" the words and comma "by a corporation or other body or organisation" set up by the Central Government, shall be substituted ; and (ii) in clause (b), the semi‑colon at the end shall be omitted and thereafter the words and semi‑colon "and includes a Chairman, Vice‑Chairman, Member, Officer or other employee of a Local Council, as defined in the Basic Democracies Order, 1959 or of a Municipal Committee, or a Chairman, Director, Managing Director, Trustee, Member, Officer or other employee of any corporation, or other body or organisation constituted or established under any law;" shall be added.

16. The petitioner as a Managing Director of the Delta Jute Mills does not fall within the ambit of section 3 quoted above and as such he is not a public servant within the meaning of section 21 of the Penal Code. The point raised above has, therefore, no substance. No other point of law was raised in the case.

17. The Committing Magistrate after considering the evidence and materials on record found a prima facie case and accordingly committed the accused to the Court of Session. The learned Sessions Judge on re‑assessment of the evidence affirmed the order of the learned Magistrate. A prima facie case having been established, we cannot take any exception to the order on merits.

18. The order of commitment was passed on 22‑7‑67, but the trial of the case could not proceed thereafter due to dilatory attitude of the petitioner.

19. Considering all aspects of the case we do not think it a fit case for our interference.

20. The Rule is accordingly discharged. It is directed that records of the case be sent down at once for expeditious disposal of the trial. SALAHUDDIN AHMED, J.‑I have listened carefully to the judgment delivered by my learned brother Hakim just now. I would like to add a few observations of my own in regard to the two decisions of the Supreme Court of Pakistan referred to by my learned brother in his judgment and would also like to say something about section 215 of the Cr. P. C.

22. Non‑compliance with the provisions of section 211, Cr. P. C. came in for consideration before the Supreme Court on two occasions. On the first occasion the matter was considered in Moonda and others v. The State. It was observed by the Supreme Court that:‑ "The production and examination of witnesses under section 208, Cr. P. C. does not by any means Constitute com pliance 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, Cr. P. C. This observation was repeated by the Supreme Court in the case of Ibrahim and others v. The State. The Supreme Court further made the following observations in the latter case. "It may assist for the better understanding, in a general sense, of the observations made by this Court in the case of Moonda if we repeat what has often been said in regard to judgment of Superior Courts, namely, that every thing said in such a judgment is to be evaluated in relation to the particular facts and circumstances of the case thereby decided. The case of Moonda was of a wholly exceptional, not to say unique, character." Finally their Lordships observed as follows towards the end of their judgment. "An additional reason was found in the fact that the Committing Magistrate had failed to comply with the provisions of section 211, Cr. P. C. but nothing was said in that case as to whether such failure was an irregularity of curable nature or an illegality. We do not find it necessary in this case to say anything further on that point, since we find that it does not arise for discussion here." In none of the two cases the Supreme Court, however, set aside the order of commitment. Nevertheless it is clear that their Lordships are of the opinion that section 211, Cr. P. C. gives a vested right to the accused to obtain cancellation of the charge framed against him by the Committing Magistrate and that this provision should therefore be complied with. In these circumstances it would be presumptuous on our part to pronounce a definite opinion in regard to the effect of the non‑compliance with the provisions of section 211, Cr. P. C.

23. Section 215, Cr. P. C. provides that commitment once made under section 213, Cr. P. C. by a competent Magistrate can be quashed by the High Court only on a point of law. Although the learned Advocate appearing on behalf of the petitioner has argued that the evidence in the case does not justify commitment of the petitioner to the Court of Session we have found on a perusal of the evidence that the learned Magistrate had not committed any illegality by making such commitment. The learned Advocate has not pointed out to us any illegality in this respect.

24. On my part I was inclined to set aside the order of commitment with a view to remedy the defect of non‑compliance with the provisions of section 211, Cr. P. C. since the trial has not commenced and the matter has made no progress beyond the commitment. In view, however, of the conduct of the petitioner referred to in my learned brother's judgment, and having regard to the fact that the petitioner has been trying to delay the trial, and also having regard to the fact that no act of prejudice has been caused to the petitioner I think the order passed by my learned brother is the only appropriate order in the case and I, therefore, agree with the order. Rule discharged.