K. T. DESAI, J. ( 1 ) THE question that has been referred for decision to this full bench is the following:whether a statement made by all accused at the committal inquiry in answer to questions put by the Magistrate in a case in which no evidence has been adduced by the prosecution and in which the order of commitment is passed after perusing the police statements under sec. 207a Criminal Procedure Code can be admitted as evidence under sec. 287 Criminal Procedure Code? in order to appreciate the point which arises for determination it is necessary first to refer to the provisions of sec. 287 of the Criminal Procedure Code. That section provides as under ; ( 2 ) THE examination of the accused if any recorded by or before the committing Magistrate shall be tendered by the prosecutor and read as evidence. ( 3 ) THIS section makes it obligatory upon the prosecutor to tender the examination of the accused if any which has been recorded by or before a committing Magistrate and the same is required to be read as evidence. We will next have to consider the provisions of the Code of Criminal Procedure 1898 relating to the examination of the accused by or before a committing Magistrate. Reference in this connection may be made to the provisions of sec. 207a (6) and sec. 342 of the Criminal Procedure Code. Sec. 207a (6) provides as under:when the evidence referred to in sub-sec. (4) has been taken and the Magistrate has considered all the documents referred to in sec. 173 and has if necessary examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him and given the prosecution and the accused an opportunity of being heard such Magistrate shall if he is of opinion that such evidence and documents disclose no 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. ( 4 ) SEC. ( 4 ) SEC. 342 (1) lays down as under :for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him the Court may at any stage of any inquiry or trial without previously warning the accused put such question to him as the Court considers necessary and shall for the purpose aforesaid question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence. ( 5 ) THE relevant words used in sec. 207a (6) and sec. 342 in connection with the examination of the accused are very nearly similar. Under sec. 207a (6) the Magistrate is entitled to examine the accused for the purpose of enabling him `to explain any circumstances appearing in the evidence against him. Under sec. 342 (1) also the Magistrate is empowered to put such questions to the accused as he considers necessary for the purpose of enabling the accused `to explain any circumstances appearing in the evidence against him. Under both these provisions the power is limited in order to obtain an explanation in respect of the circumstances which may appear `in the evidence against the accused. The power given is not a power which can be exercised for the purpose of filling in any lacuna in the case for the prosecution or for the purpose of enabling the prosecution to secure a conviction. The power cannot be exercised for the purpose of explaining the circumstances which do not appear in the evidence or in other words which appear otherwise than in the evidence led against the accused. This is made clear when one turns to the other provisions contained in sec. 207a of the Code of Criminal Procedure. This section deals with the procedure which is required to be adopted in proceedings which are instituted on a police report. ( 6 ) SUB-SEC. (3) of this section provides as follows :at the commencement of the inquiry the Magistrate shall when the accused appears or is brought before him satisfy himself that the documents referred to in sec. 173 have been furnished to the accused and if he finds that the accused has not been furnished with such documents or any of then he shall cause the same to be so furnished. 173 have been furnished to the accused and if he finds that the accused has not been furnished with such documents or any of then he shall cause the same to be so furnished. ( 7 ) AT this stage it would not be out of place to refer to sec. 173 for the purpose of ascertaining the documents referred to therein. Sub-sec. (4) of sec. 173 provides as follows :after forwarding a report under this section the officer in charge of the police station shall before the commencement of the inquiry or trail furnish or cause to be furnished to the accused free of cot a copy of the report forwarded under sub-sec. (1) and of the first information report recorded under see. 154 and of all other documents or relevant extracts thereof on which the prosecution proposes to rely including the statements and confessions if any recorded under sec. 164 and the statements recorded under sub-sec. (3) of sec. 161 of all the persons whom the prosecution proposes to examine as its witnesses. ( 8 ) THE documents referred to in sub-sec. (3) of sec. 207-A consist of the documents set out in sub-sec. (4) of sec. 173. ( 9 ) SUB-SECTION (4) of sec. 207-A provides that the Magistrate should proceed thereafter to take the evidence of such persons if any as may be produced by the prosecution as witnesses to the actual commission of the offence alleged and if the Magistrate was of the opinion that it was necessary in the interest of justice to take the evidence of any one or more of the other witnesses for the prosecution he might take such evidence also. When in sub-sec. (6) of sec. 207-A reference is Made to the circumstances appearing in the evidence against the accused the reference is to the circumstances which appear in the evidence recorded under sub-sec. (4) of sec. 207-A. Sub-section (6) of sec. 207-A deals with various steps in the course of the proceedings instituted on a police report. One step is the taking of the evidence referred to in sub-sec. (4) of sec. 207-A. Another step is the consideration by the Magistrate of all the documents referred to in sec. 173. (4) of sec. 207-A. Sub-section (6) of sec. 207-A deals with various steps in the course of the proceedings instituted on a police report. One step is the taking of the evidence referred to in sub-sec. (4) of sec. 207-A. Another step is the consideration by the Magistrate of all the documents referred to in sec. 173. The third step is the examination if necessary by the Magistrate of the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him and the fourth step is the giving of an opportunity of being heard to the prosecution and the accused. It is thereafter that the Magistrate has if he was of the opinion that such evidence and documents disclosed no grounds for committing the accused person for trial to record his reasons and discharge the accused unless he took the other course provided in the section. The words such evidence and documents in the latter part of this section refer to the evidence which is recorded under sub-sec. (4) and the documents referred to in sec. 173. ( 10 ) SUB-SECTION (7) of sec. 207-A provides that when upon such evidence being taken [that is evidence being taken under the provisions of sub-sec. (4) ] and such documents being considered [namely the documents referred to in sec. 173 ] and such examination (if any) being made [ that is the examination of the accused for the purpose of enabling him to explain the circumstances appearing in the evidence against him ] and the prosecution and the accused being given an opportunity of being heard the Magistrate was of opinion that the accused should be committed for trial he should frame a charge under his hand declaring with what offence the accused was charged. Sub-sections (6) and (7) both indicate the aforesaid four steps. It is not permissible to mix up the various steps and consider what transpires when the Magistrate gives the prosecution and the accused an opportunity of being heard as being equivalent to what transpires when the Magistrate examines the accused for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him ( 11 ) RELIANCE has been placed upon a decision of the Bombay High Court reported in 61 Bombay L. R page 1173-Ramdas Kikabhai v. State. It is a decision of an eminent Bench of that Court consisting of Chief Justice Chainani and Justice S. T. Desai as he then was. In the course of the Judgment the learned Judges have clearly set out the distinction which exists between evidence and documents within the meaning of these words as used in sec. 207-A of the Criminal Procedure Code. At page 1175 they observe that the evidence referred to therein is the evidence if any taken under sub-sec. (4) and that it could not therefore include the documents referred to in sec. 173. They have held that the section contemplated an examination of the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him that is in the evidence if any recorded under sub-sec. (4 ). However when dealing with the question whether the Magistrate had the power to question the accused for the purpose of enabling him to explain any circumstances appearing in the documents referred to in sec. 173 they came to the conclusion that the Magistrate would have the power to examine the accused also in respect of circumstances appearing in the documents referred to in sec. 173. They further held that in a case where no evidence had been led under the provisions of sec. 207-A (4) and the Magistrate had examined the accused in connection with the documents referred to in sec. 173 the examination would be admissible in evidence under sec. 287 of the Criminal Procedure Code. With respect to the learned Judges we find ourselves unable to subscribe to what is laid down in this connection. In our view the effect of the decision in substance is to add words to sec. 207-A (6) for which we see no warrant. The decision would have been justified if it had been stated in sec. 207-A (6) that the accused may be examined for the purpose enabling him to explain any circumstances appearing not merely in the evidence led against him under sub-sec. (4) but in the documents referred to in sec. 173. We cannot read the words appearing in the evidence as amounting to appearing both in the evidence and in the documents referred to in sec. 173. (4) but in the documents referred to in sec. 173. We cannot read the words appearing in the evidence as amounting to appearing both in the evidence and in the documents referred to in sec. 173. In that judgment it is stated that the conclusion which they had arrived at was based on the words given the prosecution and the accused an opportunity of being heard appearing in the section. With respect we cannot see our way to accede to this argument. What is provided by these words represents the fourth step referred to by us earlier in the procedure that has to be adopted under sec. 207-A. The step relating to the examination of the accused by the Magistrate represents the third step in that procedure. The fourth step in the procedure is intended to enable the accused to make his submission in respect of the matter which was before the Magistrate. The submission made by the accused in exercise of the right conferred by this provision cannot be regarded as an examination of the accused within the meaning of sec. 287 of the Criminal Procedure Code. A submission made by the accused cannot be equated with the examination of the accused by a Magistrate. In our view the two matters are distinct and different. In this connection we may usefully refer to sec. 251-A (2) which was enacted at the same time as section 207a. Under the provisions of section 251a (2) it has been provided that if upon consideration of all the documents referred to in section 173 and making such examination if any of the accused as the Magistrate thought necessary and after giving the prosecution and the accused an opportunity of being heard the Magistrate considered the charge against the accused to be groundless he should discharge the accused. The examination of the accused contemplated under section 251a is an examination in connection with documents referred to in section 173. The examination of the accused contemplated under section 251a is an examination in connection with documents referred to in section 173. The language of section 251a (2) is materially different from the language used in section 207 The words for the purpose of enabling him to explain any circumstances appearing in the evidence against him are absent in section 251 There is no reason for us to assume that the legislature when enacting section 207a (6) also intended that the Magistrate should have the power to examine the accused in connection with the documents referred to in section 173 when the legislature has in express words confined the provision to circumstance appearing in the evidence led against the accused. ( 12 ) THERE is an unreported decision of a Division Bench of this Court given in Criminal Appeal No. 279 of 1960 Bai Khatija v. State of Gujarat on 19th and 20/09/1960. In that case a Division Bench of this Court found itself unable to concur with the view taken by the Bombay High Court in the decision referred to by us earlier. It was there held that the examination of the accused was not permitted at the committal stage in cases where no evidence had been led by the prosecution. We are in agreement with that view. ( 13 ) IN the result the answer to the question is in the negative. The answer is confined to the admissibility of the statement under section 287 of the Code of Criminal Procedure 1898 .