Judgment 1. 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. 2. 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 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prosecution witnesses according to the provisions of Sec.208, Criminal P. C. It may be stated that the petitioners have withdrawn their applications for the transfer of the case and the only point pressed before us is that the learned Magistrate is wrong in law in rejecting the prayer of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 Sec.208 of the Code. In order to appreciate the argument the relevant facts may be shortly stated as follows. 3. Two separate investigations were started by the Provincial C. I. D. and the Delhi Special Police Establishment in connection with an illegal disposal of distillary molasses. Several persons, including one Ramji Lal Marwari and his lour servants or agents, are alleged to have taken part in the disposal thereof. The Provincial Police submitted a charge sheet on 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 sum other district. This Court by its order dated 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 25th May 1949, against several peraona including some of those against whom the Provincial Police had submitted the charge sheet. S.N. Prasad, While the case was pending in his Court, the Central Police submitted a charge-sheet on 25th May 1949, against several peraona including some of those against whom the Provincial Police had submitted the charge sheet. It may be stated here that the Central Police submitted the charge sheet under various sections of Penal Code as well as under s. 5, Prevention of C irruption Act, 1947 (Act II [2] of 1947) while the Provincial Police had submitted the chargesheet only under different sections of the Penal Code. On 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 parsons who are said to be 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, Criminal P. C. and by his order dated 25th May 1949, allowed the prayer for withdrawal and discharged Ramji Lal Marwari and his four servants. 4. The trial commenced on 23rd June 1949, and the procedure adopted, at the instance of the Public Prosecutor, was that of warrant cases as laid down in Chap. XXI, Criminal P. C. In all, 99 prosecution witnesses were examined including Ramji Lal Marwari and his four servants out of whom about 38 prosecution witnesses were cross examined by some of the accused at some length under Sec.252 of the Code. Some of the accused, however, did not cross-examine any of the prosecution witnesses. The prosecution closed its case on 18th March 1950. After hearing arguments on the evidence for seven days the Court framed charges on 11th May 1960, under several sections of the Penal Code and also under Sec. 5, Sub-section (2) of Act II [2] of 1947, against some of the accused who are petitioners before us. 5. It may be stated that the last mentioned charge is exclusively triable by the Court of Session under the provisions of Sec.29 read with schedule II, Criminal P. C. Apparently, the Magistrate did not realise this and arranged that cross-examination of the prosecution witnesses under Sec.256, Criminal P. C., 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. 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 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 Sec. 5 (2), should have been prepared to proceed on that basis under the provisions of chap. 18, Criminal P. C., without bothering about the wishes of the State and Central Government. On 15th June 1950, the Public Prosecutor said "that the case should be committed to Sessions" (we are quoting from the Magistrates order sheet) and the Magistrate decided to proceed under chap. 18 of the Code from the stage of Sec.210. The petitioners wanted to cross-examine the prosecution witnesses on the ground that they have the statutory right under Sec.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 charges in the trial under chap. 21. He took the view that the cross-examination of the prosecution witnesses by some of the accused before the charge in the trial under chap. 21, is substantial compliance with the requirement of Sec.208 (2) of the Code, and in this view of the matter the prayer for the further cross-examination was rejected. 6. It has been argued before us that the provisions of Sec.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 chap. 21 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. 7. Chapter 18, in which Sections 206 to 220 occur, relates to the procedure of as enquiry into cases triable by the Court of Session or High Court. Similarly, chap. 7. Chapter 18, in which Sections 206 to 220 occur, relates to the procedure of as enquiry into cases triable by the Court of Session or High Court. Similarly, chap. 21, in which Sections 251 to 259 occur, relates to the procedure of the trial of warrant cases by the Magistrates. Chapter 24, 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 chap. 21, as a warrant case. In a trial of a warrant case when the accused appears the Magistrate has to proceed under Sec.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 Sec.252 of the Code, the Magistrate finds that no case against the accused has been made out he shall discharge the accused under Sec.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 chap. 21, 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 Sec.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 Sec.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 Sec.258, if the Magistrate find a the accused not guilty, he shall record an order of acquittal. Thus, an examination of the provisions of these different sections of chap. 21 of the Code clearly shows that an absolute right of cross-examination by the accused is expressly given only by Sec.256, after the charge is framed. Under Sec.258, if the Magistrate find a the accused not guilty, he shall record an order of acquittal. Thus, an examination of the provisions of these different sections of chap. 21 of the Code clearly shows that an absolute right of cross-examination by the accused is expressly given only by Sec.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 Sec.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 V/s. Maju, 8 C. W. N. 838; and Emperor V/s. G.A. Mathews, A. I. R. (16) 1929 Cal. 822 : (31 Cr. L. J. 809)). The Magistrate baa 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 Sec.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 ground that the provisions of Sec.256 have been substantially complied with by cross-examination before the charge. It may be observed that Sec.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-ex animation before the charge that the materials produced before the Court are not sufficient to warrant a conviction. 8. But if it appears to the Magistrate at any stage of the proceeding under chap. 8. But if it appears to the Magistrate at any stage of the proceeding under chap. 21 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, under Sec.347 commit the accused "under the provisions herein before contained." The phrase "under the provisions hereinbefore contained" occurring in Sec.347 must be referable to chap. 18 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. Sec.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, Criminal Procedure Code Amendment Act, 1923 (Act XVIII [18] of 1923). The intention of Sec.347 as originally enacted was that the subsequent enquiry should be in accordance with chap. 18. Some confusion was caused by the words "stop further proceedings and". Hence they have been omitted. 9. We have already stated that under Sec.347 the Magistrate has to follow the provisions of Chap. 18 of the Code before passing an order of commitment to the Court of Session. A reference to the different sections occurring in Chap. 18 shows that the main provisions of the Chapter are mandatory. Sec.207 of the Code says that "the following procedure shall be adapted 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 been underlined (here italicized) seem to be a clear reference to Sec.347. Then follows Sec.208. Then follows Sec.208. It is relevant to read here Sec.208 (2) which runs thus: "The accused shall be at liberty to cross-examine the witnesses for the prosecution, and in such a case the prosecutor may re-examine them." Sec.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 Sec.208 of the Code are complied with. Thai 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. Sec.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." Sec.212 gives discretion to the Magistrate to summon and examine any witness named in any list given to him under Sec.211. After the framing of the charge and compliance with the mandatory provisions of Sec.211, the Magistrate under Sec.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 Court of Session. Thus, it appears from the examination of these various sections of chap. 18 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 Sec.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. 10. Reading the relevant sections of chaps. 10. Reading the relevant sections of chaps. 18, and 21 in juxta-position it is clear that Sec.252 does not give the accused a statutory right, and the opportunity of cross examination before charge, which in practice he is given, is given! as a matter of interpretation and on the application of the principles that the accused must get every reasonable opportunity of establishing his innocence whereas Sec.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. Sec.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 chap. 18; this makes it essential that Sec.208 (2) must be strictly complied with. Merely because the accused in the initial proceeding has been permitted to cross-examine the witnesses before the charge it cannot be said that he has exercised his right under Sec.203 (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 Sec.208. 11. The distinction drawn by us is not a mere technical one. The objects of cross-examination before charge in a trial under chap. 21 and in an enquiry under chap. 18 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 chap. 21, 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 chap. On the contrary, the opportunity of cross-examination not fully availed of in a proceeding under chap. 18 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 Sec.208 (2) then he would exploit, is a trial under Chap. 21, the chance of cross-examination before charge which the accepted practise in the Stata givea him. In these circumstances, it cannot be said, merely because the accused has cross-examined some or all of the witnessed before the charge in the proceeding under chap. 21 that there has been substantial compliance with the provisions of Sec.208, Sub-section (2). The question of substantial compliance does not arise. The cross-examination under Sec.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 Sec.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 Sec.208 of the Code may be used against him under the proviso to Sec.33 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 Sec.33, Evidence Act, if the accused did not cross-examine the prosecution witnesses under Sec.252 of the Code: vide Emperor V/s. C.A. Mathews, A. I. R. (16) 1929 Cal. 322 (31 Cr. L. J. 809). We are, therefore, of the opinion that, even if an opportunity was given to the accused to cross-examine the witnesses under Sec.252 before the framing of the charge, he cannot be deprived of his right to cross-examine the witnesses if the procedure of chap. 18 of the Code is adopted. 322 (31 Cr. L. J. 809). We are, therefore, of the opinion that, even if an opportunity was given to the accused to cross-examine the witnesses under Sec.252 before the framing of the charge, he cannot be deprived of his right to cross-examine the witnesses if the procedure of chap. 18 of the Code is adopted. The framing of the charge under Sec.210 by the Magistrate without complying with the provision of Sec.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. 12. King J. held in the case of Ram Ghulam V/s. Emperor, 53 ALL. 692: A. I. R. (18) 1931 ALL. 434 : (32 Cr. L. J. 849) that as soon as a Magistrate decides under Sec.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 chap. 18. 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 Sec.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 Sec.347, Criminal P. C., the Magistrate could commit the accused under the provisions hereinbefore contained i.e., the provisions contained in Chap. 18. He need not start proceedings de novo but he must not deprive the accused of any right which he might have exercised under Chap. 18 if the case had been treated as inquiry under that chapter from the outset." 13. 18. He need not start proceedings de novo but he must not deprive the accused of any right which he might have exercised under Chap. 18 if the case had been treated as inquiry under that chapter from the outset." 13. The question as to the mandatory nature of the provisions of some of the sections of chap. 18 subsequently came for consideration before a Full Bench of the Allahabad High Court in the case of Emperor V/s. Asghar, 58 ALL. 671: (A. I. R. (23) 1936 ALL. 134: 37 Cr. L. J. 337 F. B.) 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 Chap 18. In order to justify the action of the Magistrate in the present case the word commit in Sec.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 Sec.213 of the Code, a section which occurs in Chap. XVIII, and it is therefore clear that when acting under Sec.347 the Magistrate has to do something referable to Chap. 18, and when the legislature speaks of provisions it is obvious to my mind that the entire procedure laid down in Chap. 18 has got to be followed." Again at page 678, the same learned Judge observed: "I should not be deemed to hold that when & Magistrate proceeds to commit a casa under Sec.347 to the Court of Session while conducting a trial or holding any inquiry other than one under Chap. 18, proceedings under Chap. 18 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 Chap. 18 should be followed and he should not deprive the accused of any right which he might have exercised under Chap. 18 should be followed and he should not deprive the accused of any right which he might have exercised under Chap. 18 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/s. Ilahi Baksh, 2 All. 910 and the case of Emperor V/s. Ramghulam, 53 All. 692: (A. I. R. (18) 1931 All. 434 : 32 Cr. L J. 849)." 14. Therefore, so far as the case of Emperor V/s. Ram Ghulam, 63 ALL. 692 : (A. I. R. (18) 1931 ALL. 434: (32 Cr. L. J. 849) 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 Damodaram V/s. Emperor, 62 Mad 995: (A.I.R. (16) 1929 Mad. 862: 31 Cr. L. J. 273). It has been held that a commitment under Sec.347, Criminal P. C., can be made only after compliance with the provisions of chap. 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 chap. XVIII of the Code which define the procedure to be adopted in inquiries into cases triable 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. Tae decision was followed in Lakshminarayana V/s. Suryanarayana, A. I. R. (19) 1932 Mad. 502 : (33 Cr. L. J. 765). In Jyostna Nath V/s. Emperor, 51 Cal. 442 : (A.I.R. (11) 1924 Cal 780 : 26 Cr. L. J. 63), 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 Sec.347, Criminal P. C." In G.V. Raman V/s. Emperor, 57 Cal. 44 : (A. I. R. (16) 1929 Cal. 593 : 30 Cr. He has no discretion, in such a case, to disallow cross-examination under Sec.347, Criminal P. C." In G.V. Raman V/s. Emperor, 57 Cal. 44 : (A. I. R. (16) 1929 Cal. 593 : 30 Cr. L. J. 1107), 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 Sec.347, Criminal P. C., 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 V/s. Emperor, A. I. R. (18) 1931 Bom. 517 : (33 Cr. L. J. 63), 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 chap. XVIII. In Fazal V/s. Emperor, I. L. R. (1940) 21 Lah. 151 : (A. I. R. (27) 1940 Lah. 389 : 42 Cr. L. J. 29), the Lahore High Court has held that what is necessary is that when a Magistrate acts under Sec.347, he should be careful not to prejudice the accused by depriving him of the opportunity provided by Sections 208 and 212. Thus on a review of the different sections occuring in chaps. 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 Sec.210 without giving them an opportunity to cross-examine the prosecution witnesses under the provisions of Sec.208, Clause (2) of the Code. 15. From what we have said above, it follows that the two charges under Section 5 (2) of Act II [a] of 1947 must be set aside. 15. From what we have said above, it follows that the two charges under Section 5 (2) of Act II [a] of 1947 must be set aside. The Magistrate had no jurisdiction to frame these charges without complying with the provisions of Sec.208, Sub-section (2) of the Code. He must now comply with that section and then consider under Sections 209 and 210 whether there are 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 chap. 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. 16. As it appears from the charges framed by the learned Magistrate that he is rather vague as to the meaning of Sec. 5 and the effect on the Penal Code of Act No. II [2] itself, we feel that it is necessary to say a few words on this subject. Act No. II [2], 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 Sec.161, 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 Sec.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 (us?) 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 [2], 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 arty arrest, therefore, without a warrant. By Section 3 of Act No. II [2], 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 arty arrest, therefore, without a warrant. Sec. 4 of Act No. II [2] 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. Sec. 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 Sec.161, 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 any 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 1918 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, Penal Code, read with Sec. 5 (2) of Act II [2] of 1917 and within my cognizance." 17. The first portion of this charge clearly is intended to reproduce Clause (a) of Sec. 5 (1) of Act No. II [2]. The first portion of this charge clearly is intended to reproduce Clause (a) of Sec. 5 (1) of Act No. II [2]. We do not understand how the word directly has crept into the two charges instead of the word "habitually." There is 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 Sec. 5, Sub-section (1) of Act No. II [2]. It is further evident from the charge framed that the Magistrate regards the offence charged as one under Sec.161, Penal Code. This is not correct. The reference to Sec.161 in Clause (a) is merely to avoid repetition of the words which its Sec.161, Penal Code, follow the words "motive" or "reward." That is to say, Sec.161, 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 Sec.161 or under any other provision of the Indian Penal Code, it is an offence under Act No. II [2] and is made punishable by Sub-section (2) of Sec. 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 Sec. 5, which portion merely reproduces the words of Clause (d) without giving any particular whatever. 18. 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. 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 Sec. 5 (2) of Act No. II [2] 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 Sec. 5 (2), because the Magistrate appeared to be under a misapprehension of the law as regards that section, and we wished to avoid the possibility that, owing to his misapprehension, he might frame 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. 19. 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 as necessary. 19. 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 as 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 Sec. 5 (2) of Act No. II [2]. 20. 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 Sec.208 (2), Criminal P. C.