1. SAJJAD AHMAD, J.--The four appellants, namely, Qadar Bakhsh, Wali Muhammad, Juma and Pindok, have been committed by the District Magistrate, Makran, to stand their trial in the Court of Sessions at Kalat, under sections 302/34 and 307/34, P. P. C. for having in furtherance of their common intention committed the murder of one, Ahmad, and for the attempted murder of his nephew, Din Muhammad.
2. The appellants challenged the committal order before the Sessions Judge, Kalat, by a revision petition, alleging that it was illegal and stood vitiated on the following grounds :- (1)That some of the P. Ws. we're not examined by the committing Court ; (2)That after the framing of the charges, the committing Court did not call upon all the petitioners to give a list of defence witnesses; and (3)That the committing Court did not record the statement of any of the petitioners, as required by section 209, Cr. P. C.
3. The learned Sessions Judge dismissed the petition, and a further revision filed by the appellants in the High Court was also dismissed.
4. On a petition for special leave to appeal to this Court, the very same objections were urged against the committal of the appellants. By order dated the 11th of May 1970, a Bench of this Court found no substance in ground No,
1. As regards ground No, 2, it was observed that although it was essential to give an opportunity to the accused persons to file a list of defence witnesses, the failure to do so was not a strong ground for quashing the order of commitment. Leave, however, was granted on the last objection, to examine the effect of the non-examination of the appellants by the committing Magistrate, as it was contended that it had caused prejudice to their case.
5. Our examination of the record reveals that after the charges were framed against the appellants by the committing Court, two of them, namely, Juma and Pindok, gave a statement that they did not have any defence to offer. Qadar Bakhsh, appellant, filed his list of defence witnesses. It seems that Wali Muhammad accused was not asked formally whether he wanted to file a list of defence witnesses or not, but two of his witnesses were included in the committal pro forma at his instance.
6. The order of the committing Court dated the 30th of September 1968, makes this clear. The relevant part of it is as follows :- "The list of D.Ws. produced by accused Qadar Bakhsh has been placed on file. While the names of D.Ws. given by accused Wali Muhammad have been inserted in the committal pro forma, the accused Pindok and Juma have failed to give the names of any of the D. Ws., and a statement to this effect has been recorded and placed on the file."
7. The main object of filing the list of defence witnesses in the committing Court is that the attendance of those witnesses should be secured well in advance of the trial. Nevertheless, if the accused fail to file the list in the committing Court, they can, with the permission of the trial Court do so after their commitment and before their trial, and may for that matter seek to supplement the list of defence witnesses already filed in the committing Court. Such a prayer would ordinarily be granted by the trial Court unless the request is intended to delay or defeat the cause of justice, or otherwise it amounts to an abuse of the process of the Court.
8. On the question of non-examination of the appellants by the committing Magistrate, it is necessary to refer to the relevant legal provision bearing on the point, which are contained in sections 209 and 210, Cr. P. C., and which read as follows :- "209.--(1) When the evidence referred to in section 208, subsections (1) and (3), has been taken, and he has (if necessary) examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him, such Magistrate shall, if he finds that there are not sufficient grounds for committing the accused person for trial, record his reasons and discharge him, unless it appears to the Magistrate that such person should be tried before himself or some other Magistrate, in which case he shall proceed accordingly.
(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.
9. 210.--(1) When, upon such evidence being taken and such examination (if any) being made, the Magistrate is satisfied that there are sufficient grounds for committing the accused for trial, he shall frame a charge under his hand, declaring with what offence the accused is charged.
(2) As soon as (such charge) has been framed, it shall be read and explained to the accused, and a copy thereof shall, if he so requires, be given to him free of cost."
10. The words "if necessary" contained in parenthesis in section 209, Cr. P. C., and similarly the words "if any" also in parenthesis as contained in section 210, Cr. P. C. have given rise to a conflict of judicial opinion on the matter. In an Allahabad case reported as Ram Das and others V. State , which was relied upon by the learned counsel for the appellants, it was held that "under section 209, Cr. P. C. a Magistrate can omit to examine an accused person only if he feels that there are no circumstances for the accused to explain, and he can be discharged without recording such a statement. However, where a commitment has to be made, the accused person must be examined. The words "if any" used in section 210, Cr. P. C. do not confer any discretion to the Magistrate." It was further held in this case that "the words "if any" are only used to cover those cases where the accused refuses to make a statement and does not reply to the questions put by the Court or he is physically incapable of making a statement, e.g., if he is deaf and dumb." In a Madras case reported as Queen-Empress v. Pandara Tevan the same view was expressed, and it was held as follows :-1 2 " It was the duty of the Magistrate before committing the accused persons for trial to have examined them for the purpose of enabling them to explain any circumstances appearing in the evidence against them. The effect of section 209, Cr. P. C., is that it is not left to the discretion of the Magistrate, who intends to commit, to examine the accused person. He is bound to examine him, and if he makes an order of commitment without examining him, the order is irregular. Before, however, the order can be quashed, it must be shown that the irregularity has occasioned a failure of justice."
11. The opposite view was expressed in a Culcutta case Emperor v. Ajahar Mondal , in which it was held that "the obligation to examine the accused person arises only after he enters into his defence, which is reached not before but after his commitment when he is asked to register his plea of defence."
12. Mr. M. B. Zaman, the learned Advocate-General, Punjab, supporting the Calcutta view, mentioned above, has submitted that while it is desirable that the accused persons should be examined before their commitment, there is no obligation under the law on the part of the committing Magistrate to do so. He has referred us to a judgment of the Lahore High Court reported as Fazal and others v. The State wherein it was observed that "ordinarily in the Court of the committing Magistrate, the stage at which the examination of the accused becomes mandatory is not reached. Obviously that stage is only reached at the trial."
13. In our view no word used in a legislative provision can be Qadar regarded as a superfluity, and a meaning must be given to it. The words "if necessary" employed in section 209 confer a discretion on the committing Magistrate to examine the accused person for the purpose of enabling him to explain any circumstances appearing in the evidence against him, and to consider whether sufficient grounds do not exist for committing him for trial to the Sessions Court. The words "if any" used in section 210 having a different connotation from the words "if necessary" used in section 209 presuppose for purposes of making an order of commitment of the accused person for trial that the committing Magistrate has considered the necessity or otherwise of that examination. He can thus commit the accused persons after he has recorded the prosecution evidence without the need for him to examine the accused persons also. This construction of sections 209 and 210, Cr. P.
14. C. in regard to the examination of an accused person for purposes of his commitment by the committing Magistrate, is in conformity with the nature of the function of the committing Court in holding the pre-trial inquiry. It is not at all the function of the committing Court to assess evidence in the case, and it does not, therefore, need to have the statements of the accused persons also for doing so. The questions of fact and law arising in a murder case can only be decided at the trial by the Sessions Court, and the committing Magistrate would be exceeding his jurisdiction if he attempts at recording clear-cut findings on the questions of facts, or even where he starts speculating as to the chances of the conviction or of the acquittal of the accused person on the basis of the evidence recorded by him. His job quite plainly is to see if a prima facie case is made out for trial. Of course, he has the jurisdiction to discharge an accused person under section 209, Cr. P. C. where the prosecution evidence fails altogether and no believable evidence, even prima fade, has been adduced by the prosecution to connect the accused with the crime of murder, as alleged against him.
15. One other argument addressed for the appellants in this behalf was that under section 287, Cr. P. C. the examination of an accused person duly recorded by or before the committing Magistrate has to be tendered and read as evidence, which for that reason has to be brought into existence. This is a wholly fallacious argument, as section 287 merely envisages evidentiary value for such a statement if recorded by the committing Magistrate but without ordaining any necessity for doing so.3 4 If the statement itself is non-existent, section 287 will have no application whatsoever.
16. For the reasons stated, this appeal is dismissed. AIR 1955 All. 616 I L R 23 Mad. 636 I L R 62 Cal. 475 PLD 1960 Lah. 547