State of Kerala vs Mathai

S. Velu Pillai, J.—This is a reference, made by the Second Additional District and Sessions Judge, Kottayam, for quashing the commitment of the accused for trial, ordered by the 1st Class Magistrate, Thodupuzlia, in C.C. 124/57, on the ground, that the Magistrate did not comply with the provisions of S. 207-A, Crl.P.C. There were a case and a counter case, both arising out of the same incident. One of these was filed as P.B. 1 of 1957, and was committed by the Magistrate to the Sessions Court, where it was registered as Sessions Case 28 of 1958, and the other, which, was registered in the file of the Magistrate''s Court as C.C. No. 124 of 1957, was not exclusively triable by the Sessions Court; but the learned Magistrate thought, that it was a fit case for commitment, under the provisions of S. 347 Crl.P.C. In committing the case, however, he did not conform to S. 207-A Crl.P.C. by examining the eye-witnesses, who are 8 in number. S. 347 Crl.P.C. enjoins on the Magistrate where he deems fit to commit the accused, to follow the provisions contained in Chapter XVIII of Crl.P.C. This is the interpretation which has been placed upon the relevant clause in S. 347, "he shall commit the accused under the provisions hereinbefore contained." There is no doubt on the facts stated above, that the learned Magistrate committed a violation of S. 207-A, by not examining any of the witnesses. The effect of such a violation has been considered by a Division Bench of this Court in In re Kunjan Raghavan and others 1957 KLT 210, and it was held, that the wording of sub-section 4 of S. 207-A is mandatory, and the Magistrate has no discretion to dispense with the examination of the eye witnesses. This view has been taken in two cases decided by the Madhya Bharath and Mysore High Courts. The division bench followed an earlier case decided by the Travancore-Cochin High Court in State v. Govindan Thampi Bhaskaran Thampi reported in 1956 KLT 550. I am bound to follow the decisions of the Kerala High Court, cited above. I therefore, come to the conclusion that the order of commitment cannot be sustained. It is hereby quashed and the case is sent back to the 1st Class Magistrate''s Court,. Thodupuzha for disposal in accordance with law. The reference is answered as above.