Lakshmikanta Jha, C.J and Reuben, J.:— An important question of law is involved in these five petitions and so they have been referred to a Division Bench. As the point of law in all these cases is common and arises out of the facts of the same case; this judgment will govern them all.

The petitioners moved this Court for the transfer of the case from the court of Mr. S.N Prasad, Subordinate Judge of Patna, who is invested with the powers of a magistrate of the first class (hereinafter to be referred to as the magistrate), to the court of some other magistrate of competent jurisdiction. In the alternative, there is a prayer for a direction that the petitioners may be allowed an opportunity to cross-examine the prosecution witnesses according to the provisions of section 208 of the Code of Criminal Procedure. It may be stated that the petitioners have withdrawn their applications for the transfer of the case and the only point pressed before us is that the learned magistrate is wrong in law in rejecting the prayer of the petitioners to cross-examine the prosecution witnesses under section 208 of the Code. In order to appreciate the argument the relevant facts may be shortly stated as follows:—

Two separate investigations were started by the Provincial C.I.D and the Delhi Special Police Establishment in connection with an illegal disposal of distillery molasses. Several persons, including one, Ramji Dal Marwari and his four servants or agents, are alleged to have taken part in the disposal thereof. The Provincial police submitted a charges-sheet on the 4th November, 1948, against some of the accused. Cognizance of the case was taken by the Subdivisional Magistrate, Samastipur. While the case was pending before him, an application was made to this Court for the transfer of the case to a competent court of some other district. This Court by its order dated the 12th January, 1949, transferred the case to the court of the Subordinate Judge Magistrate, Patna, and ultimately the case came up for trial in the court of Mr. S.N Prasad. While the case was pending in his court, the Central Police submitted a charge-sheet on the 25th, May, 1949, against several persons including some of those against whom the Provincial Police had submitted the charges-sheet. It may be stated here that the Central Police submitted the charge-sheet under various sections of the Penal Code as well as under section 5 of the Prevention of Corruption Act, 1947 (Act II of 1947), while the Provincial Police had submitted the charges-sheet only under different sections of the Penal Code. On the 25th May, 1949, the Public Prosecutor made an application to the court for the withdrawal of the case against Ramji Lal Marwari and four other persons who are said to on his servants or agents, on the ground (as it appears from the order-sheet) that he wanted to examine them as prosecution witnesses. The learned magistrate gave his consent as required by section 494 of the Code of Criminal Procedure and by his order dated the 25th May, 1949, allowed the prayer for withdrawal and discharged Ramji Lal Marwari and his four servants.

The trial commenced on the 23rd June, 1949, and the procedure adopted, at the instance of the Public Prosecutor, was that of warrant cases as laid down in chapter XXI of the Code of Criminal Procedure. In all, 99 prosecution witnesses were examined including Ramji Lal Marwari and his four servants, out of whom about prosecution witnesses were cross-examined by some of the accused at some length under section 252 of the Code. Some of the accused, however, did not cross-examine any of the prosecution witnesses. The prosecution closed its case on the 18th March, 1950. After hearing arguments on the evidence for seven days the court framed charges on the 11th May, 1950, under several sections of the Penal Code, and also under section 5, sub-section (2) of Act II of 1947, against some of the accused who are petitioners before us.

It may be stated that the last-mentioned charge is exclusively triable by the Court of Session under the provisions of section 29 read with schedule II of the Code of Criminal Procedure. Apparently, the magistrate did not realise this and arranged that cross-examination of the prosecution witnesses under section 256 of the Code of Criminal Procedure should commence on 25th May, 1950. On that date, however, a petition was filed by the Public Prosecutor to commit the case to the Court of Session. The petitioners protested against such a course and the Public Prosecutor was directed by the magistrate to consult the State and Central Government and intimate by 15th June 1950, “if the case is to proceed as a warrant one or it should be tried by sessions”. This is a surprising order. The magistrate having held that there was sufficient evidence to justify a charge under section 5(2) should have been prepared to proceed on that basis under the provisions of chapter XVIII of the Criminal Procedure Code without bothering about the wishes of the State and Central Government. On the 15th June, 1950, the Public Prosecutor said “that the case should be committed to sessions” (we are quoting from the magistrate's order-sheet) and the magistrate decided to proceed under chapter XVIII of the Code from the stage of section 210. The petitioners wanted to cross-examine the prosecution witnesses on the ground that they have the statutory right under section 208 of the Code to cross-examine the prosecution witnesses before the commitment. The learned magistrate refused to allow the accused to cross-examine the prosecution witnesses as most of them had been cross-examined at length before the charge in the trial under chapter XXI. He took the view that the cross-examination of the prosecution 1 witnesses by some of the accused before the charge in the trial under chapter XXI is substantial compliance with the requirement of section 208(2) of the Code, and in this view of the matter the prayer for further cross-examination was rejected.

It has been argued before us that the provisions of section 208, clause (2), of the Code are mandatory and, therefore, the magistrate has no power to deprive, the accused of their statutory right to cross-examine, the prosecution witnesses even though a few of them cross-examined some prosecution witnesses in the trial of the case under chapter XXI before the charge. The contention of the petitioners is right, and, in our opinion, a survey of the provisions of some of the relevant chapters of the Code of Criminal Procedure, clearly supports it:

Chapter XVIII, in which sections 206 to 220 occur, relates to the procedure of an enquiry into cases triable by the Court of Session or High Court. Similarly, chapter XXI, in which sections 251 to 259 occur, relates to the procedure of the trial of warrant cases by the magistrates. Chapter XXIV, in which sections 337 to 352 occur, contains general provisions as to enquiries and trials. In the present case, the initial proceedings before the learned magistrate were conducted under chapter XXI as a warrant case, in a trial of a warrant case when the accused appears the magistrate has to proceed under section 252 to hear the complainant (if any) and “take all such evidence as may be produced in support of the prosecution”. If upon taking all the evidence referred to in section 252 of the Code, the magistrate finds that no case against the accused has been made out he shall discharge the accused under section 253. If, however, after such evidence the magistrate is of the opinion that there is ground for presuming that the accused has committed an offence triable under, chapter XXI which he is competent to try, he shall frame in writing a charge against the accused. After the charge has been framed, the accused is required under section 256 to state, at the commencement of the next hearing of the case or forthwith, whether he wishes to cross-examine any of the witnesses, and, if so which of the witnesses of the prosecution whose evidence has been taken Under section 257 the accused, after he has entered upon his defence, has a right to apply to the magistrate to issue processes for the attendance of any witness for the purpose of the examination or cross-examination. But if the accused has cross-examined, or had an opportunity of cross-examining any witness after the charge is framed, the attendance of such witness shall not be compelled unless the magistrate is satisfied that it is necessary for the purposes of justice. Under section 258, if the magistrate finds the accused not guilty, he shall record an order of acquittal. Thus, an examination of the provisions of these different sections of chapter XXI of the Code clearly shows that an absolute right of cross-examination by the accused is expressly given only by section 256 after the charge is framed. Before the framing of the charge, there is no express statutory provision for the cross-examination of any of the prosecution witnesses. The phrase “take all such evidence as may be produced in support of the prosecution” occurring in section 252 of the Code has been interpreted in several cases to mean that the magistrate should give the accused an opportunity to cross-examine the prosecution witnesses, if he should so desire, even though the charge may not be framed, a, procedure that is well established in this State. But that is not the same-thing as saying that the magistrate must give the accused an opportunity to cross-examine the prosecution witnesses before the charge Ashirbad Muchi v. Maju Muchini and Emperor v. C.A Mathews(2)]. The magistrate has no power to prohibit cross-examination of the witnesses for the prosecution after the charge has been framed if he does so there will be a clear violation of the mandatory provision of section 256, of the Code. Even if the accused has cross-examined the witnesses before the charge it is not open to the magistrate to disallow cross-examination after the charge on the around the provisions, of section 256 have been substantially complied with by the cross-examination before the charge. It may be observed that section 256 does not prohibit cross-examination before a charge, and the principle upon which the accused is given an opportunity to cross-examine the prosecution witnesses before the charge is framed seems to be that the accused should be discharged and not unnecessarily harassed by a criminal prosecution if it can be shown by cross-examination before the charge that the materials produced before the court are not sufficient to warrant a conviction.

But if it appears to the magistrate at any stage of the proceeding under chapter XXI that the case is one which ought to be tried by the Court of Session or High Court, and if he is empowered to commit for trial, be shall, under section 347, commit the accused “under the provisions hereinbefore contained”. The phrase “under the provisions hereinbefore contained” occurring in section 347 must be referable to chapter XVIII of the Code, which, as we have already stated, lays down the provisions for conducting an enquiry into cases triable by the Court of Session or High Court. Section 347, as it stood before the amendment of 1923, reads as follows:

“If in any inquiry before a Magistrate, or in any trial before a Magistrate, before signing judgment, it appears to him at any stage of the proceedings that the case is one which ought to be tried by the Court of Session or High Court, and if he is empowered to commit for trial, he shall stop further-proceedings and commit the accused under the provisions hereinbefore contained.”

The words “stop further proceedings and” have been omitted by section 91 of the Criminal Procedure Code, Amendment Act, 1923 (Act XVIII of 1923). The intention of section 347 as originally enacted was that the subsequent enquiry should be in accordance with chapter XVIII. Some confusion was caused by the words “stop further proceedings and”. Hence they have been omitted.

We have already stated that under section 347 the magistrate has to follow the provisions of chapter XVIII of the Code before passing an order of commitment to the Court of Session. A reference to the different sections occurring in chapter XVIII shows that the main provisions of the chapter are mandatory. Section 207 of the Code says that

“the following procedure shall be adopted in inquiries before magistrates where the case is triable exclusively by a Court of Session or High Court, or, in the opinion of the magistrate, ought to be, tried by such Court.”

The words which we have italicised seem to be a clear, reference to section 347. Then follows section 208. It is relevant to read here section 208(2) which runs thus:—

“The accused, shall be at liberty to cross-examine the witnesses for the prosecution, and in such case the prosecutor may re-examine them.”

Section 209 empowers a magistrate to discharge the accused if he considers the charge to be groundless. If, however, he 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. Therefore, he can, frame the charge only after the provisions of section 208 of the Code are complied with. That is to say, it is only after the accused has been given an opportunity to cross-examine the witnesses for the prosecution that the occasion for his discharge or the framing of the charge against him arises. Section 211 of the Code provides that

“The accused shall be required at once to give in, orally or in writing, a list of the persons whom he wishes to be summoned to give evidence on his trial.”

Section 212 gives discretion to the magistrate to summon and examine any witness named in any list given to him under section 211. After the framing of the charge and compliance with the mandatory provisions of section 211, the magistrate under section 213 may make an order committing the accused for trial by the High Court or the Court of Session as the case may be. But if the magistrate after hearing the witnesses for the defence is satisfied that there are not sufficient grounds for committing the accused, he may cancel the charge and discharge the accused. This shows how anxious the legislature was that the accused should not be unnecessarily committed to the count of Session. Thus, it appears from the examination of these various, sections of chapter XVIII that the accused has an absolute statutory right to cross-examine witnesses for the prosecution before the charge is framed. After the framing of the charge, the magistrate may, in his discretion, summon and examine any witness named in the list given by the accused, under section 211, and if after hearing the witnesses for the defence he is satisfied that there, are not sufficient grounds for committing the accused he may cancel the charge and discharge the accused.

Reading the relevant sections of chapters XVIII and XXI in juxtaposition it is clear that section 252 does not give the accused a statutory right, and the opportunity of cross-examination before charge, which in practice be is given is given as a matter of interpretation and on the application of the principle that the accused must get every reasonable opportunity of establishing his innocence; whereas section 208 expressly gives an absolute right to the accused to cross-examine the witnesses for the prosecution before the charge and the magistrate has no power to refuse to the accused the right of cross-examination if the latter insists on his right to cross-examine the witnesses for the prosecution. Section 256 gives a statutory right to the accused to cross-examine the witnesses for the prosecution after the charge is framed. There is no corresponding right in the accused if the enquiry is under chapter XVIII; this makes it essential that section 208(2) must be strictly complied with. Merely because the accused in the initial proceedings has been permitted to cross-examine the witnesses before the charge it cannot be said that he has exercised his right under section 208(2). Therefore, in our opinion, that would not be a ground for refusing the right of cross-examination by the accused under the mandatory provision of section 208.

The distinction drawn by us is not a mere technical one. The objects of cross-examination before charge in a trial under chapter XXI and in an enquiry under chapter XVIII are not necessarily the same, and the results of not availing oneself of the opportunity in full or at all are different. In a trial under chapter XXI, cross-examination before charge may conceivably lead to a discharge, but the charge will immediately be followed by a full opportunity of cross-examination in the same court, and may lead to acquittal, which is a final and conclusive order. Hence, the accused may prefer to wait till the charge, if any, is framed, and to confine his immediate cross examination to eliciting statements from witnesses which will prevent the later development of the prosecution story, or to incidental matters, e.g, following up an admission made by a witness, before he can be got at by the other side. On the contrary the opportunity of cross-examination not fully availed of in a proceeding under chapter XVIII will not recur again, in that court and may mean a costly trial in another court starting with a repetition of all that each witness, has said in the court of the committing magistrate. If, therefore, an accused person feels that he has a reasonable chance of a discharge by the committing magistrate, he is more likely to exploit his opportunity of cross-examination under section 208(2) than he would exploit in a trial under chapter XXI, the chance of cross-examination before charge which the accepted practice in the State gives him. In these circumstances, it cannot be said, merely because the, accused has cross-examined some or all of the witnesses; before the charge in the proceedings under chapter XXI, that there has been substantial compliance with the provisions of section 208, sub-section (2). The question of substantial compliance does not arise. The cross-examination under section 252 is a matter of interpretation and practice, and the accused retains the right of full cross-examination after the charge is framed. But under section 208 he has statutory right to cross-examine the witnesses for the prosecution at length. This express statutory provision is in recognition of the inherent right of a citizen not to be harassed in the Court of Session if he can satisfy the court by cross-examination that no case has been made out against him and that he should be discharged. It may be observed that the deposition of a witness if not cross-examined by the accused under section 208 of the Code may be used against him under the proviso to section 33 of the Evidence Act if the other conditions laid down in the section are fulfilled, but it has been held that such a deposition is not admissible under section 33 of the Evidence Act if the accused did no cross-examine the prosecution witness under section 252 of the Code [vide Emperor v. C.A Mathews]. We are, therefore, of the opinion that, even if an opportunity was given to the accused to cross-examine the witnesses under section 252 before the framing of the charge, he cannot be deprived of his right to cross-examine the witnesses if the procedure of chapter XVIII of the Code is adopted. The framing of the charge under section 210 by the magistrate without complying with the provision of section 208 is illegal. He can frame the charge only after giving a full opportunity to the accused to cross-examine the witnesses for the prosecution, because before the framing of the charge the accused is entitled to an opportunity to satisfy the magistrate by cross-examination that the case is one for discharge and not for commitment.

King, J. held in the case of Ram Ghulam v. Emperor that, as soon as a magistrate decides under section 347 to commit an accused for trial in the court of session, the proceedings in the trial shall be deemed to have been held under chapter XVIII. The facts of that case were peculiar and have no application to the case before us. There, the accused had been completely tried for an offence under section 363, Penal Code, prosecution witnesses had been examined and cross-examined in full and all the witnesses whom the accused wished to produce had been examined and cross-examined, and then the magistrate decided that it was a case under section 366, Penal Code and committed it to the Court of Session. It is not necessary to consider here whether the decision of King, J. was correct. It will suffice to say that his Lordship did not intend it to govern all cases that might arise. On the contrary, the following passage in his judgment would appear to be in accordance with the view we have expressed above:

“Under section 347 of the Code of Criminal Procedure the Magistrate could commit the accused ‘under the provisions hereinbefore contained’, i.e, the provisions contained in chapter XVIII. He need not start proceedings de novo, but he must not deprive the accused of any right which he might have exercised under chapter XVIII if the case had been treated as an inquiry under that chapter from the outset.”

The question as to the mandatory nature of the provisions of some of the sections of chapter XVIII subsequently came for consideration before a full bench of the Allahabad High Court in the case of Emperor v. Asghar in which Bajpai, J. is reported to have observed at pages 675-76 of the report as follows:—

“A Magistrate is not empowered to pass an order of commitment without following the provisions contained in chapter XVIII. In order to justify the action of the Magistrate in the present case the word ‘commit’ in section 347 should be confined to the mere writing and signing of a commitment order, ignoring completely the fact that the committal is to be made ‘under the provisions’ (the word is in the plural) ‘hereinbefore contained’. The committing order can be made only under section 213 of the Code, a section which occurs in chapter XVIII, and it is therefore clear that when acting under section 347 the Magistrate has to do something referable to chapter XVIII, and when the legislature speaks of ‘provisions’ it is obvious to my mind that the entire procedure laid down in chapter XVIII has got to be followed.”

Again, at page 678, the same learned judge observes:—

“I should not be deemed to hold that when a Magistrate proceeds to commit a case under section 347 to the court of session while conducting a trial or holding any inquiry other than one under chapter XVIII, proceedings under chapter XVIII are to be commenced de novo. If the Magistrate has already completed the evidence of the complainant and his witnesses, it is not necessary for him to take that evidence afresh; all that is necessary is that in respect of the remaining proceedings the provisions of chapter XVIII should be followed and he should not deprive the accused of any right which he might have exercised under chapter XVIII if the case had been treated as an inquiry under that chapter from the outset. I am in complete agreement on this point with the view expressed in the case of Empress of India v. Ilahi Bakhsh (I.L.R 2 Allahabad 910) and the case of Emperor v. Ram Ghulam I.L.R 53 Allahabad 692).”

Therefore, so far as the case of Emperor v. Ram Ghulam is concerned, the learned. Judge has accepted the correctness only of the proposition laid down in the passage cited by us from the judgment of King, J. In Damodaran v. Emperor it has been held that a commitment under section 347 of the Code of Criminal Procedure can be made only after compliance with, the provisions of chapter XVIII of the Code and it was pointed out that the words “commit the case under the provisions hereinbefore contained” used in section 347 must relate to those provisions in chapter XVIII of the Code which define the procedure to be adopted in inquiries into cases friable by the Court of Session. Curgenven, J. observed in this case that the legislature has laid down provisions for procedure before commitment, some of which were obviously intended, and rightly intended, for the benefit of accused persons. The decision was followed in Lakskminarayana v. Suryanarayana. In Jyotsna Nath Sikdar v. Emperor it was held:—“When an application to cross-examine the prosecution witnesses, during an enquiry preliminary to commitment, is made before the charges are framed and before the Magistrate has decided to commit to the Court of Session, he is bound to allow such cross-examination. He has no discretion, in such a case, to disallow cross-examination under section 347 of the Criminal Procedure Code.” In G.V Raman v. Emperor(3) it was pointed out that when a magistrate follows the procedure of a warrant case with a view to try the case himself, and the accused exercises his right to reserve cross-examination till after charge, and if, in the midst of the trial or immediately after finishing the evidence for the prosecution, the magistrate decides to commit the accused to the sessions, he is not compelled under section 347 of the Code of Criminal Procedure to refuse to allow the accused to cross-examine the witnesses, and accused should not lose the right he had reserved before such decision of the magistrate. The Bombay and the Lahore High Courts also seem to favour the same view. In K.R Bhat…Accused Applicant; v. Emperor…Opposite Party.(4), a Division Bench of the Bombay High Court held that if before the passing of an order of commitment the accused applies to the magistrate for an opportunity to cross-examine prosecution witnesses and to examine the defence witnesses and the magistrate declines to examine the witnesses on behalf of the accused or to allow, cross-examination of the prosecution witnesses, the accused might approach the High Court for a direction to the magistrate to follow the provisions of chapter XVIII. In Fazl v. Emperor the Lahore High Court has held that what is necessary is that when a magistrate acts under section 347, he should be careful not to prejudice the accused by depriving him of the opportunities provided by sections 208 and 212.

Thus on a review of the different sections occurring in chapters XVIII and XXI of the Code, and the case law on the point, we are of the opinion that the magistrate is wrong in framing the charges against the accused under section 210 without giving them an opportunity to cross-examine the prosecution witnesses under the provision of section 208, clause (2), of the Code.

From what we have said above, it follows that the two charges under section 5(2) of Act no. II of 1947 must be set aside. The Magistrate had no jurisdiction to frame these charges without complying with the provisions of section 208, sub-section (2) of the Code. He must now comply with that section and then consider under sections 209 and 210 whether there and sufficient grounds for committing the accused persons to the Court of Session. Both these sections we may mention speak of the examination of the accused, “if necessary”, to enable him to explain any circumstances appearing in evidence against him. A similar provision is to be found in sections 253 and 254 in chapter XXI. This examination is to precede the framing of the charge. In this connection we would also draw the attention of the learned magistrate to section 342 of the Code. The record does not show, if the learned magistrate applied his mind to this matter before the charges were framed.

As it appears from the charges framed by the learned magistrate that he is rather vague as to the meaning of section 5 and the effect on the Penal Code of Act no. II itself, we feel that it is necessary to say a few words on this subject. Act no. II, which is styled the Prevention of Corruption Act, 1947, is designed to make more effective the provisions for the prevention of bribery and corruption. Under section 161 of the Penal Code it is an offence for a public servant to take a gratification other than legal remuneration in respect of an official act, and it is an offence under section 165 for a public servant to obtain a valuable thing, without consideration, from a person concerned in a proceeding or business transacted by such public servant—it is not necessary for me to set out at length the elements which constitute these offences. Under the ordinary procedure, both these offences are non-cognizable. By section 3 of Act no. II, these offences are made cognizable, but it is provided that a police officer below the rank of Deputy Superintendent of Police shall not investigate any such offence without the order of a magistrate of the first class or make any arrest therefor without a warrant. Section 4 of Act no. II modifies the law of evidence with respect to trials for offences under these two sections of the Penal Code by providing, for a presumption to be drawn against the accused if certain facts are established. Both these offences still remain offences under the Penal Code, Section 5 of the Act deals with an offence which it calls criminal misconduct in the discharge of duty. This offence is committed by a public servant.

“(a) if he habitually accepts or obtains or agrees to accept or Attempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration) as a motive or reward such as is mentioned in section 101 of the Penal Code,…….

(d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person by valuable thing or pecuniary advantage.”

We are omitting clauses (b) and (c), as the charges framed by the learned magistrate seem to refer to clauses (a) and (d) only. We reproduce below one of the charges framed:—

“That you, between September 1947 and March 1948 being a public servant………………directly accepted or agreed to accept from Ramji Lal and his servants a gratification other than legal remuneration as a motive for forbearing to do an official act, and by illegal and corrupt means or by otherwise abusing your position as a public servant obtained for yourself pecuniary advantage and thereby committed an offence punishable under section 161 of the Penal Code read with section 5(2) of Act 11 of 1947 and within my cognizance.”

The first portion of this charge clearly is intended to reproduce clause (a) of section 5(1) of Act no. II. We do not understand how the word “directly” has crept into the two charges instead of the word “habitually”. There is a considerable difference in the meaning of the two words, and the evidence necessary to establish that the accused did something “directly” will be entirely different from the evidence required to prove that they did it “habitually”. If the magistrate is really under the impression that the offence under clause (a) requires proof not of “habitual” but of “direct” action by the accused persons, this charge may well have been framed on evidence which is insufficient to support a charge under, clause (a) of section 5, sub-section (1) of Act no. II. It is further evident for the charge framed that the magistrate regards the offence charged as one under section 161 of the Penal Code. This is not correct. The reference to section 161 in elapse (a) is merely to avoid repetition of the words which in section 161 of the Penal Code follow the words “motive or reward” That is to say, section 161 of the Penal Code is used merely for the purpose of defining the offence created by clause (a). The offence so created is not an offence under section 161 or under any other provision of the Penal Code, it is an offence under Act no. II and is made punishable by sub-section (2) of section 5 of the Act. Before we leave the subject of the charges, we may also observe that the charges are somewhat vague. This is particularly so in the portion of the charges referring to clause (d) of sub-section (1) of section 5, which portion merely re-produces the words of clause (d) without giving any particulars whatever.

Finally, it is to be considered what should happen to the other charges which have been framed by the learned magistrate under the sections triable by him. It has been urged on behalf of the petitioners that these charges also should be cancelled. Different considerations apply, it is said, when a magistrate frames charges in a case which he intends to try himself and when he frames charges in a case which he has decided should be committed to the Court of Session. In the former case, he is generally satisfied that the evidence is prima facie sufficient to support all the charges framed by him. In the latter case, it may well happen that, having framed a charge in respect of an offence triable exclusively by the Court of Session, he feels it proper to refrain from weighing the evidence on the minor charges and, therefore, frames charges for those offences also, although, if he had to try the case himself, he might not have done so. The argument is not without substance, and, in fairness to the accused persons and to the magistrate himself. I think it would be proper to set aside those charges also. In doing this we express no opinion as to whether the charges were justified or not there has been no occasion for us to go into the evidence in the case, and it would not be proper for us to express any opinion in the matter. The absence of comment by us on these charges in contrast with the comments we have made above on the charges under section 5(2) of Act no. II must not be interpreted as implying an approval of them as properly drawn up. This was a matter which it is not necessary for us to consider and we have not done so. We discussed the charges under section 5(2), because the magistrate appeared to be under a mis-apprehension of the law as regards that section, and we wished to avoid the possibility that, owing to his misapprehension, he might frame a charge under that section and commit the accused to the Court of Session, although the elements necessary for the offence charged, might not be made out.

It is unfortunate that, after a proceeding which has already lasted such a long time, it has been found necessary to reopen the cross-examination. It is unlikely, however, that the accused persons, who must already have been considerably harassed by the prolonged proceedings, will deliberately drag them out longer than is necessary. In fact, in the course of the argument, we were told by their lawyers that they would try to confine their cross-examination to not more than seventeen witnesses for the prosecution and would direct that cross-examination to the offences under section 5(2) of Act no. II.

On the above grounds, we would allow these petitions, set aside the charges framed by the learned magistrate, and direct that the case proceed from the stage of section 208(2) of the Code of Criminal Procedure.

S.H

Rules made absolute.