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Criminal Revision Petition No. 232 of 1958, decided on 6th June 1958, under section 439, Criminal Procedure Cole read with section 215, Criminal Procedure Code, for revision of the order of Abdur Rehman, Magistrate 1st Class, Hafizabad Camp at Gujranwala, dated the 15th February 1958.
Criminal Procedure Code (V of 1898), Ss. 208, 211 & 212 Commitment proceedings-Magistrate passing order of committal without considering defence-Commitment order illegal-Order set aside.
The committing Magistrate directed the. accused to put in' a list of defence witnesses within two days but holding that section 208 of the Criminal Procedure Code was to be read with section 212, Criminal Procedure Code, proceeded to commit the accused for trial by Court of Session before a list of defence witnesses was put in before him.
Held, that the commitment order was illegal. The right to cite and examine witnesses under section 208 is independent of the list of witnesses to be put in under section 211, and section 212 refers to the list of witnesses required to be put in under section 211, Cr. P. C., anal not to the right of citing witnesses under section 208 of the Code. The accused may put in a list of witnesses under subsection (1) of section 208 and on such an application being put in, the Magistrate is bound under subsection (3) of section 208 to issue process unless for reasons recorded he deems it unnecessary. This is a mandatory provision of law and a commitment made without such compliance is illegal.
Jhana v. Emperor A I R 1934 Lah. 610 ; Emperor v. Nga Khaing and another A 1 R 1928 Rang. 299 ; Emperor v. Channing Arnold 17 1 C 813 ; Jaswant Singh and others v. King Emperor A I R 1924 All. 3'17 ; Queen-Empress v. Ahmadi I L R 20 All. 264 and Emperor v. Muhammad Hadi I L R 26 All. 215 ref.
Moonda etc. v. The State P L D 1958 S C (Pak.) 275 fol:
Muhammad Ishaq Farooqi for Petitioner.
Muhammad Akbar for A. G. for Respondent.
Date of hearing : 6-6-58.
Abbas Shah, Dosa, Nazar, Shera and Yara accused were before Malik Abdur Rahman, Magistrate 1st Class, Hafizabad, on a charge under section 302, P. P. C., read with section 149, P. P. C., for commitment under Chapter XVIII of the Code of Criminal Procedure. Their counsel requested the learned Magistrate on the 15th February 1958, to examine some witnesses on behalf of the accused under section 208 of the Code. The learned Additional Public Prosecutor opposed this request and argued that the only such witnesses could be examined for the defence under section 208 of the Code as were present; arid as no names had been mentioned in the application, the Court was not bound to call or record any defence evidence. The learned Magistrate proceeded to pass the following order:-
"In my opinion, section 208, Criminal Procedure Code is to be read with section 212, Cr. P. C., which lays down that the committing Magistrate may, in his discretion, record the evidence of the D.Ws produced by the accused. But in this case no D.Ws. have been produced before me. The accused are directed to submit the list of defence witnesses within two days. Application stands rejected."
The accused were committed to the Court of Session forthwith on a charge under section 302 read with section 149, P. P. C. They have come up in revision to this Court against the above order. The trial of the case in the Court of Session was stayed by this Court on the 26th March 1958.
2. The learned counsel for the petitioners urges that it was the duty of the learned Magistrate to record the statements of witnesses cited on behalf of the accused. He relies upon section 208 of the Code of Criminal Procedure which is to the following effect :-
"(1) The Magistrate shall, when the accused appears or is brought before him, proceed to hear the complainant (if any), and take in manner hereinafter provided 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.
"(2) The accused shall be at liberty to cross-examine the witnesses for the prosecution and in such case the prosecutor may re-examine them.
(3) If the complainant or officer conducting the prosecution; or the accused applies. to the Magistrate to 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."
Subsection (1) of section 208. of the Code makes it clear that the Magistrate shall take all- such evidence as may be produced on behalf of the accused and subsection (3) of that section enjoins upon the Magistrate the duty to issue process to compel the attendance of any witness or the production. of any document or thing if the accused, so apply to the Magistrate, unless for reasons to be recorded he deems it unnecessary to do so. This is a mandatory provision of law which the learned Magistrate was bound to follow. A commitment made without such compliance A is illegal. In Jhana v. Emperor (A I R 1934 Lah. 610) Addison J.; took the view that section 208 of the Code of Criminal Procedure was mandatory and held that whether or not the examination of the petitioner's witnesses by the Magistrate would help the petitioner, he was entitled under the section quoted to have the witnesses examined. The commitment made without examining the defence witnesses was quashed.
3. In Emperor v. Nga Khaing and another (A I R 1928 Rang. 299) it was held as follows :-
"In an enquiry with a view to commitment, it is laid down in section 208, Criminal P. C., that the Magistrate shall hear the complainant and take all such evidence as may be produced in support of the prosecution or on behalf of the accused. This provision is mandatory and cannot be disregarded. * * * * * * The failure to comply with the requirements of this section is an illegality and more than an irregularly."
Reliance- in this judgment was placed on Emperor v. Changing Arnold (17 I C 813) wherein it was held that the Magistrate must make his proceedings conform to the provisions of Chapter XVIII of the Code and before he wrote and signed a commitment order must carry out the provisions of that Chapter which specially provided for the procedure antecedent to a trial by a Sessions or High Court.
In Jaswant Singh and others v. King Emperor (A I R 1924 All. 317) an applica tion had been made on behalf of the accused, after a charge hid been framed, for summons to be issued for examination of defence witnesses. The learned Magistrate did not entertain it on the: ground that the application had been made after charge had been framed and thought that it would be a waste of time to record the evidence. He put no question to the accused about their defence under section 208, Cr. P. C.; and, relying on Queen Empress v. Ahmadi (I L R 20 All.264), and Emperor v. Muhammad Hadi (I L R 26 All. 215) it was held that the learned Magistrate had failed to discharge the duty imposed on him by law and passed an order of committal without considering the defence. It was held that it was obligatory on the Magistrate to record such evidence as the accused wanted to produce. The order of committal was set aside.
5. The learned Magistrate ,was wholly wrong in saying that section 208 of the Code was to be read along with section 212 of the Code.; : The right to cite . and examine witnesses under section 208 is independent of the list of witnesses to be put in under section 211 and section 212 refers to the list of witnesses required to be put in under section 211, Cr. P. C., and not to the right of citing witnesses under section 208 of the Code. The accused may put in a list of witnesses under subsection (1) of section 208 and on such an application being put in, the Magis trate is bound under subsection (3) of section 208 to issue process unless for reasons recorded he deems it unnecessary. Sub section (1) of section 209 of the Code enacts that after evidence for the prosecution or defence has been taken, and the opening words have meaning, the' Magistrate may discharge the accused unless it appears to him that the accused may be tried. There is a right conferred upon the accused to demand the examination ' of his witnesses and this is a real right, as on its exercise depends the right to have his Ease considered for discharge. Under section 210,, Cr. P. C., the Magistrate is empowered to frame a charge and this stage follows the stage of consideration of the question of whether to discharge or not under section 209. As soon as a charge is framed, section 211 comes into operation and a duty is cast on the Magistrate by subsection (1) to required the accused to at once give in, orally or in writing, a list o witnesses to be summoned. While under section 208 it is an option 'of the accused or the prosecution to cite witnesses and there is no duty imposed on the Magistrate to ascertain the names of witnesses, section 211 of the Code, places an obligation on him. Section 212 enacts that the Magistrate may, in his discretion, summon and examine any witness named in any list given to him under section 21st. of the Code, and it obviously refers only to such a list. Subsection (1) of section 213 of the Code then empowers the Magistrate to cither commit the accused for trial by the Court of Session or tile High Court, as the case may be, or he may, under subsection (2), cancel the charge if he is satisfied, after hearing the defence 'witnesses, that there arc not sufficient grounds for committing the accused. Subsection (2) of section 213 of tli: Code confers a right on the accused to have his case examined for discharge. Section 207 of the Code directs that the procedure laid down in sections 208 to 213 of the Code shall be followed. These provisions enact valuable statutory rights at different stages during commitment proceedings and these provisions must be strictly followed.
6. These provisions of the Code came up for consideration before the learned Judges of the Supreme Court in Criminal Appeal No. 3 of 1958; Moonda etc., v. The State (P L D 1958 S C (Pak.) 275). In this case, the witnesses cited by the defence were called and examined by, the Magistrate as required by section 208 of the Code so that there was compliance with its provisions and a charge was framed. Immediately, commitment order was made by the Magistrate and the accused were directed to put in a list of witnesses without first requiring the accused at once to give in, orally or in writing, a list of the persons (if any) whom they wished to be summoned to give evidence at the trial, as required by section 211 of the Code of Criminal Procedure. Cornelius, J., who wrote the judgment, observed as follows :-
"Subsection (2) of section 211 of the Code of Criminal Pro cedure 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 emphasise the mandatory nature of the duty imposed by subsection (1), namely, to require the accused at once, after the charge had been framed, to give, in a list of witnesses That this is a substantial duty and corresponds to a substantial right is evidence from section 212 which empowers the Magi trate, 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."
7. Dealing with the argument that the defence witnesses had been called under section 208 of the Code and the right of calling defence witnesses at the trial was allowed to the accused but had been declined by them, it was held that-
"In our opinion, the production 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 cancella tion 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."
It is obvious, therefore; that subsection (2) of section 213 enact a right and subsection (1) of section 211 a duly, which has been interpreted as a concomitant of a right, and subsections (1) and (3) of section 208 and subsection (1) of section 209 similarly create rights, and duties
8. In this case the learned Magistrate directed the accused to put in a list of defence witnesses within two days and proceeded to commit the accused on the 15th February 1958, for trial by Court of Session before a list of defence witnesses was put in before him. The above quoted observations made in Moonda etc., v. The State are, therefore, applicable to the facts of this case.
9. The rights. under sections 208, 209 and 213 of the Code have been denied to the petitioners. The commitment order is therefore, illegal and is set aside. The case will now go back to the learned Magistrate for taking such defence evidence as is adduced under section 208 of the Code of Criminal Procedure, and he will proceed with the case from that stage onwards in strict compliance with the provisions of the Code of Criminal Procedure.
K. B. A. Order set aside : Case remanded.
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