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TMI Blog1962 (9) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... used persons appeared before the learned Chief Presidency Magistrate and furnished bail. Thereafter, the case was transferred to M. Roy, the Presidency Magistrate 5th Court for further proceedings. On the 10th October, 1960, copies of the documents were furnished to the accused persons, and since the record was voluminous, the hearing of the case was adjourned to the 7th December, 1960. On the 1st March, 1961 parties were heard and in view of the nature of the offences and the amounts involved, the Magistrate took the view that the proper course to follow would be to adopt the commitment proceedings as laid down in s. 207A of the Code. Subsequently, the procedure prescribed by the said section was followed. It appears that accused No. 1 who had in the meanwhile been, convicted in another case was undergoing a sentence of imprisonment in the District jail at Kanpur and so, he could not be produced before the Magistrate until the 7th July, 1961. That is why the case had to be adjourned on some occasions and effective hearings did not make a material progress until the 7th July. On the 6th July, 1961, the respondent filed a petition before the Magistrate alleging that amongst the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application of the 6th July, '61 under the provisions of the said section. Incidentally, the High Court also observed that the accused persons had not been examined under s.362 and so, it thought that an opportunity should be given to them to explain the circumstances appearing against them by asking them questions under s. 342, This observation was made even though the High Court did not think it necessary to decide the general question whether in a commitment enquiry, examination of the accused under s.342 is compulsory or not. In the result, the order passed by the'.Magistrate on the 7th July, 1961, was set aside and the matter was sent back to his Court for disposal in accordance with law. It is against this order that the appellant has come to this Court by special leave and on its behalf Mr. Prem has contended that the High Court was in' error in holding that s. 540 of the Code applied to proceedings under s. 207A. In the alternative, he has argued that the Magistrate had himself considered the question as to whether the witnesses should be examined in the light of his powers under s. 540 and so, even if his first point failed, he was entitled to contend that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Magistrate has considered all the documents referred to in s.173 and has, if necessary, examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him and given the prosecution and the accused an opportunity of being heard, he shall, if he is of opinion that such evidence and documents disclose no grounds for committing the accused person for trial, record his reasons and discharge him, unless he thinks that such person should be tried before himself or some other Magistrate, in which case he shall proceed accordingly. Sub-section (7) deals with a case where on considering the evidence and the documents produced and after giving opportunity to the prosecution and the accused to be heard, the Magistrate is of opinion that the accused should be committed for trial, he shall frame a charge under his hand, declaring with what offence the accused is charged . Sub-section (8) then lays down that as soon as the charge has been framed, it shall be read and explained to the accused and a copy thereof given to him free of cost. Under sub-section (9), the accused shall be required at once to give in, orally or in writing, a list of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue process to compel the attendance of any witness or the production of any document or thing the Magistrate shall issue such, process unless, for reasons to be recorded, he deems it unnecessary to do so. In other words, in regard to the proceedings tried under s. 208, an accused person is entitled to lead evidence in defence and the 'Magistrate is bound to allow such evidence to be led, except, of course, where he comes to the conclusion that such evidence need not be led in which case he has to record his reasons for. coming to that conclusion. When we consider the relevant provisions of s. 207A and contrast them with the corresponding provisions of s. 208, it becomes clear that an accused person has no right to lead evidence in defence in proceedings governed by s. 207A, whereas he has a right to call for such evidence in proceedings governed by section 208. This position, however, does not affect the question as to whether s. 540 applies even to the proceedings governed by s. 207A. Section 540 gives power to the Court to summon material witness or examine a per-son in attendance, though not summoned as a witness, or recall and re-examine any person already examined, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tage of any enquiry, trial or other proceeding under this Code. This section is wide enough to include a proceeding under s. 207A and so, it would be unreasonable to contend that the scheme of s.207A makes section 540 inapplicable to the proceedings governed by s. 207A. The power of the court under s. 540 can be exercised as much in regard to cases governed-by s. 207A as in regard to other proceedings governed by the other relevant provisions of the Code. Therefore, we are satisfied that Mr. Prem is not justified in arguing that the Magistrate had no jurisdiction to examine witnesses as court witnesses even if he had held that the examination of such witnesses would be essential to the just decision of the case. The alternative argument urged by Mr. Prem still remains to be considered. The High Court seems to have thought that in rejecting the application of the respondent for examining defence witnesses, the Magistrate took the view that he had no power to do so in the present proceedings because his jurisdiction was circumscribed by the provisions of s. 207 A. That appears to be the sole basis of the decision of the High Court in reversing the order of the Magistrate and sendi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Magistrate in rejecting the application of the respondent, it is very difficult to sustain the view taken by the High Court that the Magistrate was inclined to hold that s.540 did not apply to the proceedings in the present case. The High Court has also referred to the fact that the accused persons have not been examined under s.342 of the Code, and it has apparently asked the Magistrate to examine the accused persons under that section, without considering the question as to whether it was necessary that the Magistrate should examine them at this stage. We have already referred to the relevant provisions of s.207 A (6). Sub-section (6) provides that the Magistrate can examine the accused if he thinks it necessary to do SO. Besides, even according to the judgment of the High Court, the failure to examine the accused persons under s.342 did not amount to a material irregularity and could not-by itself, therefore, justify the reversal of the order passed by the learned Magistrate. The result is, the appeal is allowed, the order passed by the High Court is set aside and that passed by the learned Magistrate on the 7th July, 1961, is restored. It is to be regretted that the ..... 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