Full Judgment
N.K. Sen, J.
1. This is a Rule calling upon the Chief Presidency Magistrate of Calcutta to show cause why the order of commitment of the petitioner to the Court of Sessions should not be quashed.
2. By an order, dated 20-11-1957 Sri T.K. Mutsuddi, Presidency Magistrate, Calcutta committed the petitioner to take his trial in the court of Sessions on a charge under Sections 397/395 of the Indian Penal Code.
3-4. It is not necessary for the present purpose to narrate the facts upon which the prosecution case was founded. An enquiry preliminary to commitment was held under the provisions of Section 207A of the amended Code of Criminal Procedure. After the matter reached the stage of trial before the City Sessions Court a point was taken that the whole commitment was wrong inasmuch as the procedure which was to be followed by the learned Magistrate, was the one laid down not under Section 207A, but under Section 208 of the Code. This argument was based on the two decisions of Chakravartti C. J. and Das Gupta J. where their Lordships held that the provisions of Section 156 of the Code were not applicable to the Calcutta Police and that the Calcutta Police had no right to submit a report under Section 173 of the Code. See the cases of Manick Chand v. The State, : AIR1958 Cal324 and M.A. Ispaque v. The State, : AIR1958 Cal341 .
5. Section 207A of the Code requires that the proceeding was to be instituted upon a police report without which the procedure laid down in that section cannot be followed. The question before the Judge of the City Sessions Court, who was to have taken up the trial, was whether in view of the admitted irregularity in the procedure followed by the learned Magistrate he had the power to quash the commitment or whether the irregularity was curable under any of the curative provisions of the Code. The learned Judge of the City Sessions Court was of the opinion and very rightly that he had no power to consider the provisions of Section 537 of the Code which did not apply to him, because he was neither an appellate nor a revisional Court. He was further of the view that a court of Sessions could not refuse to try a case when a commitmenthad been made by a competent Magistrate on the ground of any formal irregularity in the proceeding before the committing Magistrate. In this view the learned Judge of the City Sessions Court dismissed the application made before him, but postponed the commencement of the trial for a week to enable the petitioner to move the High Court in view of the difficult question of law that was involved.
6. In my judgment the order of commitment must be quashed, the recent decisions in the twocases cited above being the authorities on the point. The question that naturally arises is what would be the prejudice, real or imaginary, to the petitioner if he now be put on trial before the Court of Sessions although he had been irregularly committed. In the cases of 62 Cal WN 94: (AIR 1958 Cal 824) and : AIR1958 Cal341 Chakravartti C. J. has stated that 'the formal irregularity was not just a formal one and the question was not one of prejudice but one of legality'. Chakravartti C. J. further held that
'even if the matter was to be judged by the test of prejudice, the accused was bound to suffer great prejudice because he would lose the right of requiring the attendance of witnesses and production of documents and also the chance of having some of his own witnesses examined by the Magistrate'.
In view of the above decisions I hold that the order of commitment in the present case must be quashed and the case sent back to the learned Magistrate for proceeding with the enquiry in accordance with law i.e. in accordance with Section 208 and the subsequent sections Chap. XVIII of the Code.
7. The Rule is accordingly made absolute.