JUDGMENT Kanhaiya Lal, J.
1. This is an application asking the Court to set aside an order of committal under Section 395 of the Penal Code. Section 208 requires that the order of committal should not be passed till the Magistrate has heard the complainant and taken such evidence as may be produced in support of the prosecution or on behalf of the accused. The complaint against the accused persons was originally made under Section 342 of the Penal Code. After the evidence for the prosecution was heard and the statements of the accused persons were taken down the Magistrate framed a charge against the accused under Section 395 of the Penal Code without asking the accused whether they had any evidence to produce. After the charge was read over and explained tothem an application appears to have been made on their behalf, asking that certain witnesses should be summoned. That application is not on the record; but Mr. Dillon, who appears on behalf of the accused has satisfied the Court from a certified copy which he had in his possession that such an application was made and the order passed by the Trying Magistrate was that, he could not entertain it because it had been made after the charge had been framed and while he was writing the order of committal. The learned Magistrate also considered that it would be a waste of time to record the evidence. It was, however, obligatory on him to record such evidence as the, accused wanted to produce. He put no question to them about their evidence, and as has been held, in, Queen-Empress v. Ahmadi 20 A. 264; A.W.N.(1898) 52 : 9 lnd. Dec, (N.S.) 530 and Emperor v. Muhammad Hadi 26 A. 177 A.W. N (1903) 215 he failed to, discharge the duty imposed on him by law and passed an order of committal without considering the defence. The order, of committal is, therefore, set aside and the case sent back to, the Trying Magistrate with a direction, that he should summon and examine the witnesses which the accused' may like to produce and then proceed according to law. The application aforesaid should be traced and placed upon the record.