Patkar, Ag.C.J:— These are four applications for quashing the order of commitment of the several accused under different sections of the Indian Penal Code passed on 14th May 1931, by the Special Magistrate appointed to try the case. It is not necessary to mention all the facts leading to the prosecution of the accused in this case. The commitment can be quashed under S. 215 by this Court only on a point of law.

2. The first point taken on behalf of the accused is that the case was started as a warrant case and the learned Magistrate led the accused to believe that he was trying the case under Ch. 21, Code of Criminal Procedure, and not inquiring under Ch. 18 of the Code, and therefore the accused had no opportunity of cross-examining the prosecution witnesses and leading evidence on their behalf before the Magistrate. It is further urged that though the Magistrate had power to commit the accused under Section 347 of the Cr PC, the Magistrate was bound to proceed according to the procedure laid down by Ch. 18 of the Code.

3. With regard to the point as to whether the learned Magistrate led the accused to believe that he was trying the case as a warrant case, it is sufficient to refer to the application of the accused on 9th March 1931. In para. 4 the accused stated that the Magistrate would be acting illegally in trying charges which were exclusively triable by the Court of Session. It would therefore follow that the possibility of the accused being committed to the Court of Session was not altogether absent from the minds of the accused and their legal advisers as alleged, and the learned Magistrate in his order of the same day stated:

“I have certainly got the powers to try the accused for an offence of criminal conspiracy to commit cheating, breach of trust, and falsification of accounts under S. 120-B read with Ss. 420, 406, 477-A and 193.”

4. He also stated that if S. 120-B read with S. 467 was applicable to the case, it would no doubt be exclusively triable by the Court of Session. We think therefore that there is no substance in the suggestion that the accused were under the impression that the Magistrate led them to believe that he was trying the case solely under Ch. 21 and would not under any circumstances commit the accused to the Court of Session. The next point is whether a Magistrate committing the accused to the Court of Session under Section 347 of the Cr PC, has to follow the provisions of Ch. 18, Code of Criminal Procedure. Before the amendment: of S. 317 in which the words “stop farther proceedings and” were previously embodied in the section, there was a difference of opinion between the Punjab, Madras and Allahabad High Courts on the one hand and Calcutta and Bombay High Courts on the other on the point whether S. 347 was controlled by Section 208 of the Cr PC. The conflict of judicial opinion is reflected in the decision in the cases of The Sessions Judge of Coimbatore v. Kangaya Mantradiyar (1), Emperor v. Channing Arnold (2), Emperor v. Muhammad Hadi (3), In re Clive Durant (4) and Phanindra Nath Mitra v. Emperor (5).

5. It however appears that the legislature has enacted by Section 91 of the amending Act, 18 of 1923, that the Magistrate has to follow the provisions of Ch. 18, Code of Criminal Procedure. If beforepassing an order for 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 Ch. 18, Code of Criminal Procedure. In Jyotsna Nath Sikdar v. Emperor (6) the application to cross-examine was made before the charge was framed and before the Magistrate had decided to commit the case to the Court of Session. But after an order for commitment is passed it must be shown that the accused has suffered any prejudice by reason of the action of the Magistrate taken in the proceedings: see In re Chinnavan (7). It appears from the record that when the prosecution witnesses were examined the accused declined to cross-examine the witnesses, and no application was made to the Magistrate to give them an opportunity of cross-examining the prosecution witnesses. Indeed it appears from the proceedings that the accused did not even give a list of their own witnesses, and the complaint is made that the Magistrate did not examine the witnesses on behalf of the accused.

6. We think that no prejudice has been shown to the accused by reason of any action taken by the Magistrate. A distinction must be drawn between the obligatory duties of the Court and the privileges enjoyed by the accused under the Code. Under Ss. 256 and 257 there are certain obligations laid down on the Court, but under S. 208, sub-S. (1), the Magistrate shall take such evidence as may be produced on behalf of the accused and under S. 208, sub-S. (2), the accused shall be at liberty to cross-examine the witnesses for the prosecution. The accused's pleader having given up the right to cross-examine the witnesses and having declined to cross-examine them at the proper time cannot now complain that the witnesses were not cross-examined by the committing Magistrate. No application was subsequently made by the accused to allow cross-examination of prosecution witnesses or to examine their own witnesses. In their statements the accused stated that they would give their list of witnesses in the Sessions Court. The decision of a single Judge in the case of Damodaram, In re (8), relied on by the learned counsel on behalf of the applicants, relates to the obligatory duty laid upon the Court, and in that case the application was made before the case had reached the stage of committal. We think therefore that the first ground urged on behalf of the accused must fail.

7. It is next urged on behalf of the accused that the appointment of the Special. Magistrate was only for the purposes of the trial of the accused, that it did not empower the Special Magistrate to take cognizance and commit the accused for trial, and therefore the order of commitment is bad. The power to try a case would necessarily include the power to take cognizance. It is urged that a Magistrate can try a case without having taken cognizance of it when it is transferred to him under Section 192 of the Cr PC. The power to take cognizance under S. 190, Cl. (a), is not an ordinary power of the First Class Magistrate under Sch. 3, Code of Criminal Procedure, but is one of the additional powers with which a Magistrate of the First Class may be invested under Sch. 4, Code of Criminal Procedure. The learned Government Pleader has drawn our attention to the Notification No. J-1350, dated 5th July 1908, under which the power to take cognizance of cases was conferred on the Magistrate in question irrespective of any area. He had therefore the power to take cognizance of the case. Under S. 190, Cl. (2), the Local Government or the District Magistrate, subject to the general or special orders of the Local Government, may empower any Magistrate to take cognizance under sub-S. (1), Cl, (a), or Cl. (b) of offences which he may try or commit for trial. We think therefore that having regard to the notification, the Special Magistrate in this case was empowered by the District Magistrate to take cognizance under sub-S. (1), Cl. (a), S. 190. Evan assuming that he had no power to take cognizance, S. 529, Cl. (e), would cure the defect, if any. The powers having been conferred on the Magistrate in this case irrespective of any local area, Section 40 of the Cr PC, need not be referred to in this connexion.

8. It is next urged on behalf of the accused that the Magistrate was appointed to try the accused and that he had no power to commit the accused for trial, Under Sections 206 and 347 of the Cr PC, the Magistrate was empowered to try this case and had power to commit the accused for trial. The Magistrate had the ordinary power under Sch. 3, Cl. 8, as a First Class Magistrate to commit the accused for trials. It would therefore follow that the Special Magistrate in this case had power to take cognizance of the present offence and had also power to commit the accused for trial.

9. The last point taken on behalf of the accused was that the Magistrate was empowered under Section 14 of the Cr PC, to try the case relating to the people's own Provident and General Insurance Co. Ltd., and it is urged that the Magistrate had no power to take cognizance of other case which were investigated after the appointment of the Magistrate on 23rd December 1930. This point was not taken either in the lower Court or in the memorandum of appeal, and it is pointed out by the Government Pleader that after the investigation which was started on 26th December 1929, several facts were discovered and the sanction of the Government was granted on 22nd January 1931, under S. 196-A. against accused 25 for criminal conspiracy to commit offences, namely, under Ss. 193, 405, 420, 467, 471 and 477-A. The word “case” is a comprehensive term and would include all the offences which came to light during the investigation. We think therefore that the three points urged by Mr. Dalvi fail.

10. There were several other points raised on behalf of the other accused on the question as to the misjoinder of charges and on the point as to whether the evidence was sufficient to raise an inference of prima facie case against the accused. We do not think that the commitment can be quashed on those grounds. If there are any valid grounds, they might be urged before the Sessions Court. We think therefore that these applications must fail and the rules must be discharged.

Murphy, J.:— The applicants have been committed to the Court of Session, Poona, to stand their trial under the criminal conspiracy, cheating and other sections of Penal Code, the substance of the charges against them being that they formed a fraudulent loan company, the object of which was to cheat the public by obtaining subscriptions in various complicated ways on the promise of loans on easy terms. One of the devices adopted was of the snowball variety, and the income used dishonestly was the bulk of the money obtained by the subscriptions of the hopeful applicants for loans.

11. The complaint in the matter was made by a C.I.D Officer after an investigation of the affairs of the company, and a Special Magistrate was appointed by Government for the inquiry. It is alleged that this appointment was defective, that the Special Magistrate was not empowered to take cognizance or to commit for trial, that his proceedings were irregular and prejudiced the accused, and that a commitment of this nature should be quashed. The objections are in reality all technical. The Special Magistrate was appointed under S. 14 on 27th December last, and the actual terms of his appointment are:

“to be a Spacial Magistrate to try the case concerning the People's Own Provident and General Insurance Company Limited.”

12. The proceedings were started in the beginning of February. The applicants' main grievance is that they were given to understand by the learned Magistrate that he would himself dispose of the case and so they did not use their right to cross-examine the prosecution witnesses, and were taken aback when an order of commitment was made. The procedure in a case to be committed is governed by Ss. 206 to 213, in a case tried as a warrant case by S. 231 and the following sections, and when a decision cannot he made beforehand, the facts come within S. 254 of the Code. The last was the case here. That is, from the point when the decision is made:

“he shall commit the accused under the provisions hereinbefore contained.”

13. There is nothing in this case to indicate a violation of the requirements of S. 208. The learned Magistrate took the evidence that was offered for the prosecution: the accused offered none. The accused declined to cross-examine, implying that they were asked. They said they would make such statements as they wanted to in the Sessions Court, and they put in no list of defence witnesses under S. 211. The accused were all represented. I think they were not misled, and that the learned Magistrate did all that was required of him and committed no illegality. The intention of the accused clearly was not to cross-examine unless a charge was framed, on a charge being framed to recall all the prosecution witnesses and cross-examine them in that Court, and to reserve for the Sessions Court on the third possibility, and I think the grievance is probably due to a change of mind.

14. The next point is as to the Magistrate's power to take cognizance and to commit. The power to commit is an ordinary one, implied in the appointment of a Magistrate, First Class. The power to try is not one conferrable under Sch. 4 of the Code, is really implied in the appointment of the Magistrates of different classes. I think the expression “to try” used in the notification is not used in a restrictive sense, but merely in the sense that the case shall go to him. The power of taking cognizance may be conferred by the Local Government, or a District Magistrate, and once given remains personal to the Magistrate and independent of the local area where he may be exercising it, until withdrawn by the authority conferring the magisterial powers. The Special Magistrate here appointed was so empowered long ago. Moreover, under S. 529(e) the lack of such power is not a fatal defect. I do not think that the omission to mention the power to commit while naming the power to try limits the Special Magistrate to the exercise of the latter power only. Lastly, it is said the only case registered at the time of the Magistrate's appointment was one under Ss. 120-B and-420, and did not include the other sections mentioned in the charge. But at Magistrate has to consider the facts disclosed by the evidence, and where the facts disclose other offences not barred by lack of sanction or a similar obstacle, I do not think the Magistrate is confined to what was actually pending on his appointment.

15. Other arguments have been that the charge is too vague, but it can be amended at any time; that the order has not made out a case against some of the accused, but this is on the merits, into which we cannot go; and lastly, that the accused have been prejudiced generally, which is not, I think, the case.

16. I agree with the order proposed by the learned Chief Justice, that all the applications must be dismissed and rules discharged.

V.B/R.K

17. Rules discharged.