ORDER Chowdhry, J.
1. This is a reference under Section 438, Cr. P. Code, by the learned 1st Additional Sessions Judge of Agra recommending that an order of commitment passed by a 1st class Magistrate, Sri R. K. Rai, on 30-9-1954 be quashed with such directions as this Court may deem necessary. That the commitment in question was by a competent Magistrate is not denied. Such a commitment may be quashed by the High Court only, and only on a point of law. The point of law raised by the reference, and supported, on behalf of the accused and the State but controverted on behalf of the complainant, is that the committing Magistrate failed to comply with the provisions of Sections 208, 211 and 212, Criminal P. C.
2. The order of commitment in question was made on 30-9-54 by a 1st class Magistrate of Agra in proceedings initiated on a complaint by Rajendra Kumar Jain, Director of the Vir Industries, Delhi, against Chadami Lal, Lal Behari, Ram Sarup Gupta, Pearey Lal and three others for offences under Sections 409, 465, 467, 471 and 477-A, I. P. C. It is said that there was a sale, or agreement of sale, of the Bimal Glass Works by Chhadami Lal to the VI Industries in September 1950. The handing over of the Glass Works was however postponed by agreement until 1-5-1951, and during this period the Works were run by the quondam owner Chadami Lal. It was during this period that Chadami Lal and the other accused are said to have committed the offences in question.
3-4. After taking cognisance of the offences on the complaint and examining the complainant upon oath, the Magistrate passed an order under Section 204, Cr. P. Code, on 25-2-1954. The order was 'there appears to be prima facie case. Summon the accused.' In the summons issued to the accused it was mentioned that their attendance was necessary to answer to a charge of the offence punishable under Section 486, I. P. C. In the Vakalatnamas filed on behalf of the accused after the service of summons all the aforesaid offences in respect of which the complaint had been filed were however enumerated.
The prosecution evidence was closed on 6-8-1954 and 20-8-1954 was fixed for the statements of the accused. On the last mentioned date statements of the accused were recorded and it was stated in the order-sheet that as the accused denied the charges, the case be put up on 28-8-1954 for arguments on the framing of the charge. After certain adjournments and a local inspection arguments were heard on the 16th, 20th and 23rd of September 1954, and the case was ordered to be put up on 30-9-1954. On 30-9-1954 charges were framed in respect of offences under Sections 409, 465, 471 and 477-A, I. P. C., and Chadami Lal, Lal Behari, Ram Sarup Gupta and Pearey Lal were committed to the Court of Session to stand their trial in respect of those offences, while the remaining three accused were discharged.
The record was received in the Sessions Court in due course but it was not till sometime in January 1956 that 30-1-1956 was fixed for commencement of the trial in that Court it appears that in the meanwhile the matter of discharge of one of the accused was pending and was finally decided on a revision by this Court on 6-10-1955. On 7-1-1956 the application leading to the making of the present reference by the learned Additional Sessions Judge was preferred on behalf of the accused, it has to be seen whether the aforesaid point of law raised in the reference is well-founded and justifies the quashing of commitment.
5. In the view of the learned Additional Sessions Judge the learned Magistrate tried the accused as in a warrant case but, on its appearing to him after hearing arguments on the 16th, 20th and 23rd September 1954, that the case was one which ought to he tried by the Court of Sessions, he passed the order of commitment in question under Section 213, Cr. P. Code, without observing the provisions relating to enquiry before commitment provided by Ch. XVIII of the Code, as it was incumbent upon him to do under Section 347 of the Code.
The provisions which, according to the learned Additional Sessions Judge, the Magistrate had failed to observe before making the order of commitment were those of Sections 208, 211 and 212, as noticed already. The argument of the learned counsel appearing for the complainant, who opposed the reference, was that the Magistrate could not be said to have failed to comply with the provisions of Section 208, and that his non-compliance with the provisions of Sections 211 and 212 was curable under Section 537 of the Code.
6. The disposal of the question of the alleged non-compliance by the Magistrate with the provisions of Section 208 depends on whether it is a fact, as observed by the learned Additional Sessions Judge, that the accused were tried by the Magistrate as in a warrant case. The learned counsel appearing for the complainant pleaded that that was not so. Non-compliance with the provisions of Sections 211 and 212 subsequent to the framing of the charge being admitted, only the comparative provisions relating to enquiries under Ch. XVIII and to trials of warrant cases under Ch. XXI prior to that stage need be considered.
These provisions, contained in Sections 208, 209 and 210 relating to enquiries, and in Sections 252, 253 and 254 relating to the trial of warrant cases, show that the two procedures are alike except in two particulars: (1) in an enquiry it is incumbent upon the Magistrate, as provided by Section 208, to hear the complainant (if any), and take such evidence as may be produced in support of the prosecution or on behalf of the accused, and the Magistrate may also call for such evidence as he may think proper, but in a warrant case it is incumbent upon the Magistrate, as provided by Section 252, to proceed to hear the complainant (if any), and only take all such evidence as may be produced in support of the prosecution, and (2) the examination of the accused after the recording of evidence is, if necessary, for the purpose of enabling him to explain any circumstances in the evidence against him' in an enquiry, as provided by Section 209, but in a trial of warrant case such examination, as provided by Section 253, is not specifically for any such purposes but the Magistrate may make such examination, if any, of the accused as he thinks necessary. In either case after the recording of the evidence and the examination of the accused there may either be a discharge of the accused or a framing of the charge against him.
7. There is no doubt that only the prosecution evidence, but no evidence on behalf of of the accused, was taken in this case before the framing of the charge. According to the learned counsel for the accused the Magistrate was bound to ask the accused, after the prosecution evidence was over, if they had any evidence to produce in their behalf. And in support of this submission he cited a single Judge decision of this Court reported as Jaswant Singh v. Emperor, AIR 1924 All 317 (A).
That case is however distinguishable from the present in that the Magistrate there refused to take defence evidence even though an application for examining witnesses had been made on behalf of the accused. There was no such move on behalf of the accused at any stage in the present case. Kanhaiya Lal, J., however, went on to observe that the Magistrate erred in putting no question to the accused whether they had any evidence to produce. From what has been pointed out above, this observation was merely an obiter dictum., Were it the ratio of the decision, I would, with all respect, not have found it possible to agree. Wherever the Legislature wanted the taking of a certain action by the accused to depend on some initiative on the part of the presiding officer of the Court it expressly said so. See, for instance, the provisions of Section 211 in an enquiry and of Sections 255 and 256 in a trial of warrant cases.
Under Section 211 'the accused shall be required at once to give in or