JUDGMENT : K. B. ASTHANA, J. :- This application under Section 215, Cr. P. Code has been filed by one Abdul Aziz, resident of mohalla Pirzada, Moradabad City, who has been committed for trial for offences under Section 302 read with Section 148, Indian Penal Code, by an order of the Judicial Magistrate City Moradabad dated 5-1-61. It is prayed that the commitment be quashed as being illegal and against the provisions of law. 2. The facts giving rise to the above application may be stated as follows. One Abdul Rashid, a resident of mohalla Asalatpura, Moradabad, lodged a report at police station Kotwali, Moradabad on 5-6-1960 at 6.20 p.m. disclosing that Alimullah, Yusuf, Yunus, Yasin, Laddan, Hanif, Abdul Aziz, Bashatullah along with Abdul Salam formed an unlawful assembly with the common object of committing the murder of Abdul Majid, and causing hurt to Abdul Rashid and others and the said accused in prosecution of their common object committed the murder of Abdul Majid and voluntarily caused grievous hurt to Abdul Jalil with sharp edged weapon and voluntarily caused simple hurts to Abdul Rashid with sharp edged weapon and simple hurts to some other persons named in the first information report while committing rioting. In the first information report it was stated that all the accused were residents of mohalla Asalatpura, Moradabad. The investigating officer went to the spot short time after the report was lodged and in the general diary also all the accused are mentioned to be residents of Asalatpura. 3. It appears that on 18th June 1960 one Abdul Salam son of Banne Hasan, resident of mohalla Pirzada, Police Station Maghalpura, Moradabad, moved an application before the Additional District Magistrate (Judicial) Moradaba, implicating applicant Abdul Aziz and his nephew residents of mohalla Pirzada in the said rioting and murder. The investigating officer Sri U. D. Sharma then arrested the applicant from the hospital on 23-6-1960. When Abdul Majid, the elder son of the applicant came to know about the application filed by Abdul Salam son of Banne Hasan, he moved an application in the Court of the enquiry Magistrate on 29-6-1960 for obtaining a copy of the same. The investigating officer Sri U. D. Sharma then arrested the applicant from the hospital on 23-6-1960. When Abdul Majid, the elder son of the applicant came to know about the application filed by Abdul Salam son of Banne Hasan, he moved an application in the Court of the enquiry Magistrate on 29-6-1960 for obtaining a copy of the same. This application for obtaining the copy was registered in the Court in the copying department as urgent and was forwarded to the Court of the Additional District Magistrate (Judicial) for sending the said application in original so that copy of the same may be issued by the copying department in due course but it appears that a report was received from the office of the Additional District Magistrate (Judicial) that no such application had been made. However, on the report received from the office of the Additional District Magistrate (Judicial), this application for obtaining the copy was rejected by the enquiry Magistrate on 7-7-1960. It further appears that the application of Abdul Salam was sent from the Court of the Additional District Magistrate (Judicial) to the office of the Superintendent of Police, Moradabad for enquiry through Dak-bahi at serial number 30 dated 23-6-1960. Then on 11-8-1960 the applicant moved two applications in the Court of the learned Additional District Magistrate (Judicial) - one for the summoning of the above application of Abdul Salam son of Banne Hasan, dated 18-6-1960 from the office of the Superintendent of Police and the second one was under Section 476, Cr. P. C. that the persons responsible in the office of the Additional District Magistrate (Judicial) for sending a false report may be dealt with according to law. It appears that the learned Additional District Magistrate (Judicial) did not pass any order on those applications on that day and asked the applicant to come the next day. The applicant presented the applications on 12-8-1960 and on that day too the applications were not entertained and were returned with the direction that they be presented the next day. The applicant again went to the Court of Additional District Magistrate (Judicial) on 13-8-1950 and presented the said applications. On that day, however, the learned A.D.M. (J) entertained the said applications and passed an order 'Keep on file' and did not dispose them of. The applicant again went to the Court of Additional District Magistrate (Judicial) on 13-8-1950 and presented the said applications. On that day, however, the learned A.D.M. (J) entertained the said applications and passed an order 'Keep on file' and did not dispose them of. During the pendency of the enquiry proceedings an application was made on 17-12-1960 on behalf of the present applicant that Faruq nephew of Abdul Rashid who wrote the first information report at the dictation of Abdul Rashid, Abdul Salam son of Banne Hasan and Sri U. D. Sharma, Sub-Inspector, who investigated the case, be summoned, presumably for the purpose of showing that there has been fabrication in the first information report and he was being implicated falsely for ulterior reasons. The learned Magistrate on that application passed an order to the effect that the application was premature and would be considered after the close of the prosecution evidence. 4. The case of the applicant is that he was never mentioned as an accused in the first information report. The applicant is an old man of about eighty years of age and is a resident of mohalla Pirzada, while one Abdul Rashid, resident of Asalatpura was mentioned as one of the accused in the First Information Report. The case of the applicant further is that Abdul Salam son of Banne Hasan is an old enemy of his who with a view to falsely implicate him moved the application on 18-6-1960 before the A.D.M. (J) in which for the first time Abdul Aziz resident of mohalla Pirzada was mentioned as one of the assailants in the incident and it was on that basis that the applicant was arrested by Sri U. D. Sharma who was also on bad terms with the applicant as the said Sri Sharma had falsely prosecuted the son and nephew of the applicant for theft under Section 379, I.P.C. but they had been acquitted by Court. It is also stated that at the instance of the said Abdul Salam son of Banne Hasan and Sri U. D. Sharma interpolations were made in the first information report describing the residence of Abdul Aziz mentioned, therein as mohalla Pirzada by cutting out mohalla Asalatpura and further the warrants for arrest were also interpolated by putting in Abdul Aziz resident of Pirzada. The case of the applicant further is that the Chik showed that Abdul Aziz son of Khudabux of Asalatpura was one of the accused. It may be mentioned here that learned Additional Sessions Judge, Moradabad, while passing an order releasing the applicant on bail observed that the 'Chik' shows that Abdul Aziz son of Khudabux of Asalatpura was one of the accused and that in the written report mohalla Pirzada appears to have been written later on. A copy of the order of the learned Sessions Judge has been filed as annexure 'A' with the affidavit filed in support of this application. 5. On the above facts it has been argued by the learned counsel for the applicant that the applicant has been falsely implicated by interpolating the first information report as also the warrants at the instance of his bitter enemy Abdul Salam son of Banne Hasan and Sri. U. D. Sharma, Sub-Inspector of Police. It is further submitted that the learned enquiry Magistrate ought to nave afforded proper opportunity to the applicant to show that he has been falsely implicated by at least summoning the said Abdul Salam son of Banne Hasan and Sri U. D. Sharma and ought to have brought the original application filed by Abdul Salam son of Banne Hasan dated 18-6-1960 and other relevant documents on record. Then it is contended that the failure of the enquiry Magistrate to do so has resulted in a denial of opportunity to the applicant of being heard as required by the provisions of Section 207-A (6) and (7), Cr. P. Code and his order committing the applicant to stand his trial before the Sessions Court is vitiated. 6. On behalf of the prosecution it is urged that the order of commitment does not suffer from any defect of law as on the evidence which came before the enquiry Magistrate he was prima facie satisfied that a case was made out against the applicant and the question whether the applicant has been falsely implicated would be determined by the learned Sessions Judge at the trial. It is also submitted that under the provisions of Section 207A of the Criminal Procedure Code an enquiry Magistrate in proceedings instituted on police report is neither bound to take defence evidence nor is he bound in law to summon all the witnesses for the prosecution as it is open to him to commit a person for trial before Sessions Court merely on a consideration of the documents referred to in Section 173, Cr. P. C. 7. The allegations made on behalf of the applicant in the affidavit filed in support of the application have not been controverted and no counter-affidavit has been filed. The record of the case has also been summoned which shows that there are certain overwritings in the first information report and the word 'Pirzada' has been written in different ink after some cutting. It further shows that the application dated 17-12-1960 mentioned above was never finally considered by the learned judicial Magistrate although he had made an order on that application that at that stage it was premature and would be considered after the close of the prosecution evidence. On 17th March, 1961 an order was also passed by this Court that the Registrar will enquire from the Superintendent of Police, Moradabad, whether the application filed by Abdul Salam son of Banne Hasan dated 18th June, 1960 implicating the applicant was sent from the Court of the Additional District Magistrate (Judicial) to his office and if such an application existed then it be sent to this Court under sealed cover. The Registrar of the High Court has been informed by the Superintendent of Police, Moradabad by a letter dated 29-9-1961 that the application of Abdul Salam is not traceable inspite of best efforts and appears to have been misplaced. The Dak-bahi which is in this Court does show that an application by one Abdul Salam was sent for enquiry to the Superintendent of Police from the office of the Additional District Magistrate (Judicial). 8. Abdul Rashid, the person who lodged the first information report, has stated on behalf of the prosecution that he dictated the report to Faruq, his nephew. He further stated that he had known Abdul Aziz who lives in mohalla Pirzada for about one year but when he was making the said report he did not tell the police official about the residence of Abdul Aziz. He further stated that he had known Abdul Aziz who lives in mohalla Pirzada for about one year but when he was making the said report he did not tell the police official about the residence of Abdul Aziz. He also stated that on 5th June, 1961 when his statement was taken by police under Section 161, Cr. P. C. he had told the residence of the accused Abdul Aziz as mohalla Pirzada Katghar but he did not know why that was not taken down. Another witness for the prosecution Abdul Hasan has stated that he had told the investigating officer that Khalil had snatched lathi from Abdul Aziz at the scene of occurrence but he did not know why it was not taken down by the investigating officer. 9. The question, therefore, which arises for consideration is whether the failure of the Judicial Magistrate in the enquiry proceedings to take into consideration the above said circumstances and his failure to consider the application on behalf of the accused Abdul Aziz to summon Abdul Salam son of Banne Hasan and U. D. sharma, Sub Inspector of Police, amounts to the denial of an opportunity to the accused of being heard and the order of committal for that reason is vitiated." 10. Sub-section (4) of Section 207A, Cr. P. Code enjoins that the Magistrate shall 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 then it is left to the opinion of the Magistrate that if in the interest of justice it is necessary to that the evidence of any one or more of the witnesses of the prosecution he may take such evidence also. By sub-section (5) the accused is conferred a right to cross-examine the witnesses of the prosecution examined under sub-section (4). Sub-section (6) provides that the Magistrate will consider all the documents referred to in Section 173 and the evidence referred to in sub-section (4) and if necessary examine the accused for the purpose of enabling him to explain any circumstances appearing against him and then after giving the prosecution and the accused an opportunity of being heard, the Magistrate, if he is of opinion that such evidence and documents disclose no grounds for committing the accused person for trial, shall record his reasons and discharge him. Thus sub-sec. Thus sub-sec. (6) empowers a Magistrate to record an opinion that such evidence and documents disclose no grounds for committing the accused person for trial and after recording his reason he can discharge the accused. It is obvious that the opinion which has to be recorded under sub-sec. (6) on the basis of the evidence and documents must be based on reasons, in other words, on a judicial consideration of the material before the Magistrate. The sub-section confers a right on the prosecution and accused of being afforded an opportunity of being heard. This means that the prosecution must get an opportunity of being heard to make out a case that the evidence and documents disclose grounds for committing the accused person for trial, while the accused has a right to be hears to show that the evidence and the documents do not make out any grounds for committing him for trial. The provisions or sub-section (7) are also to the same effect. 11. The scheme of sub-section (6) and sub-section (7) is in consonance with the well established principles or natural justice, one of which is that nobody should be condemned unless he has been heard. The phrase 'an opportunity of being heard' would mean in the context of these sub-sections that the person against whom the opinion is to be recorded by the Magistrate should get a fair chance of convincing the Magistrate that the grounds or the material on which the order is proposed either do not exist or even if they exist, they do or do not justify the proposed order as the case may be. The decision of this question will necessarily depend upon the peculiar circumstances of each case including the nature of the order proposed, the material on which the allegations are based, the nature of the plea raised by the accused and an the allegations and all other matters which would help the mind in coming to a fair conclusion on the question, The phrase implies, in my opinion, two concepts : (1) that an opportunity to be heard, must be given and (2) that the opportunity should be effective and must be reasonable. Both these matters are justiciable. (See Fedco (P) Ltd. v. S. N. Bilgrami, AIR 1960 SC 415 . Both these matters are justiciable. (See Fedco (P) Ltd. v. S. N. Bilgrami, AIR 1960 SC 415 . I do not agree with the submission of the learned counsel for the prosecution that the provisions envisage only an opportunity of an oral argument at the bar on behalf of the accused and the accused has no right to ask the Magistrate to summon any documents or any witness. One aspect of this matter would be that suppose in a case on behalf of the prosecution at first a few eye witnesses are produced and other relevant evidence in their possession is not produced and on the evidence so far produced, the learned Magistrate is not satisfied that a case has been made out for committing the accused, then why cannot the prosecutor ask the Magistrate to take further evidence or a more convincing nature which he has in his possession to make out a case and if the Magistrate allows such further evidence to come in after recording his opinion under sub-section (4), then such a procedure, to my mind, would not be against the provisions of the sub-sections. If it is possible for the prosecution to ask the Magistrate to have further evidence, it is equally open to the accused to ask the Magistrate to consider such material which is in possession of the prosecution as would convince the Magistrate that no case has been made out and the grounds on which the Magistrate proposes to pass the order of committal are either non-existent that is being at the face of it false or even if they exist they do not justify the committal. 12. One of the objects of committal proceedings is that a person should not be compelled to undergo a trial before the Sessions Court on materials or evidence which are prima facie insufficient to warrant a conviction. Another object underlying the committal proceeding is that the time of the Sessions Court should not be wasted by homing a trial which on materials and evidence would not result in bringing home the guilt to the accused and thus avoid unnecessary harassment to the accused. Another object underlying the committal proceeding is that the time of the Sessions Court should not be wasted by homing a trial which on materials and evidence would not result in bringing home the guilt to the accused and thus avoid unnecessary harassment to the accused. It has been contended before me on behalf of the prosecution that after the amendment of the Criminal Procedure Code by the Amendment Act XXVI of 1955, and the introduction of a new Section 207-A of the Code the right of the accused to produce evidence in his defence has keen taken away but that, in my opinion, does not mean that the statute as it stands after amendment does not contemplate conferring of a right on the accused to convince the Magistrate that there are circumstances and materials which, if considered, would not justify the passing of an order of committal. If the accused raises a plea of a nature which indicates that there are documents with the prosecution itself which would establish that he is being falsely implicated or that the prosecution is withholding witnesses, who if produced would falsify the case against him. I think it becomes the duty of the Magistrate in those circumstances, to call for such documents or summon such witnesses. It would only be then that the accused will get an effective opportunity of being heard in order to persuade the Magistrate to record a judicial order with reasons that no ground has been made out for committing the accused for trial. In this connection a reference may again be made to sub-section (4) which provides that, if the Magistrate is of opinion that it is necessary in the interest of justice to take the evidence of any one or more witnesses for the prosecution he may take such evidence also. In the case of Shri Ram v. State of Maharashtra, AIR 1961 S C 674 it has been held that the duty to take evidence under sub-section (4) for examination of other witnesses arises only if the Magistrate is of the opinion that it is necessary in the interest of justice to take that evidence and this discretion being a judicial one it should be exercised reasonably by the Magistrate. No doubt, the provisions of subsection (4) do not specifically envisage calling up from the prosecution evidence of documentary nature but that, in my opinion, will not prevent the accused from asking the Magistrate in the interest of justice to can tor documents which are in possession of the police, as I think the accused has such a right under the provisions of sub-sections (6) and (7) of Section 207A, Cri. P. Code. The right of being given an opportunity of being heard, have observed above, means an effective opportunity of being heard in order to persuade the Magistrate to form an opinion judicially. In Shri Ram's case, AIR 1961 SC 674 (supra) the Supreme Court has further laid down in connection with the provisions of sub-section (4) that any perverse exercise of the discretion can always be rectified by a superior Court. I am of the view that if a Magistrate records an opinion that the the accused be committed but he does so without giving a proper or effective opportunity to the accused to show that there were no grounds against him, the order of committal would be bad in law as the same will suffer from a lack of exercise of judicial discretion on the part of the Magistrate. 13. It has been contended on behalf of the prosecution that a Magistrate has jurisdiction to commit the accused to the Sessions merely on the basis of the documents referred to in Section 173 of the Code and if he does so even without examining any witnesses his order would not be illegal. Reliance has been placed on certain observations made in the case of AIR 1961 SC 674 (supra). No doubt the Magistrate has such a power where the prosecution does not choose to produce any eye-witnesses and the Magistrate is not of the opinion that in the interest of justice he would examine other witnesses but that does not mean that before he records his order to commit the accused, he is not required to give an opportunity to the accused of being heard. My attention has also been drawn on behalf of the prosecution to the case of Hanumantha Rao v. State of Andhra Pradesh, (S) AIR 1957 SC 927 and relying upon certain observations of Sinha, J. as he then was, who spoke for the Court, it has been argued that opportunity of being heard under sub-sees. (6) and (7) only means 'after hearing'. In that case the Supreme Court was considering the constitutional validity of Section 207-A of the Criminal Procedure Code and repelled the attack as to its constitutionality as being violative of Art. 14 of the constitution. Explaining the scheme of the provisions of that section Sinha, J. observed as follows : "He (Magistrate) has also the power, in the interest of justice, to record such other evidence of the prosecution as he may think necessary, but he is not obliged to record any evidence. Without recording any evidence But after considering all the documents referred to in S. 1/3 and after examining the accused person and after hearing the parties, it is open to the Magistrate to discharge the accused person after recording his reasons that no ground for committing the accused for trial, has been made out, unless he decides to try the accused himself or to send him for trial by other Magistrate." 14. The learned counsel for the prosecution emphasises the words 'and after hearing the parties' contained in the above quoted observation and submits that the opportunity of being heard means no more than after hearing the parties. I am unable to agree with this submission of the learned counsel. Their Lordships of the Supreme Court were not considering the scope of sub-secs. (6) and (7) of Section 207-A and the respective rights conferred on the prosecution and the accused by those sub-sections. The words 'after hearing the parties', to my mind, have not been used by the learned Judge of the Supreme Court as explaining the entire scope and the meaning of the phrase 'an opportunity of being heard' occurring in sub-sections (6) and (7). 15. The words 'after hearing the parties', to my mind, have not been used by the learned Judge of the Supreme Court as explaining the entire scope and the meaning of the phrase 'an opportunity of being heard' occurring in sub-sections (6) and (7). 15. As a result of the discussion above, am of the view that the accused has a right to apply to the Magistrate for summoning of documents and examination or prosecution witnesses not produced by the prosecution in order to establish the patent falsity of the material produced by the prosecution against him because that is inherent in his right of being given an opportunity of being heard in order to invite the Magistrate to record judicially an opinion that there is no ground for committing him for trial to the Sessions. 16. In the present case the accused wanted the learned Judicial Magistrate to summon the application filed by Abdul Salam son of Banne Hasan Khan dated 18th June, 1960 and to examine the said Abdul Salani, U. D. Sharma and the scribe of the first information report to demonstrate before the Magistrate that the applicant was never accused in the first information report but he has been falsely implicated by the said Abdul Salam and Sri U. D. Sharma and he was arrested not because there was a first information report against him or because he was accused as a participant in the alleged crime on the basis of statements made to the police during investigation but because of the application filed by Abdul Salam son of Banne Hasan Khan when for the first time the said Abdul Salam laid information before the Court of the Additional District Magistrate (Judicial) that it was one Abdul Aziz resident of mohalla Pirzada who was also a party in the alleged rioting and murder. I have also referred above to the statements of two of the prosecution witnesses who have been produced as eye-witnesses before the Judicial Magistrate and though they claim that they made a statement before the investigating officer that it was Abdul Aziz resident of mohalla Pirzada who was one of the accused but no such statement was recorded under S. 161 Cr. P. C. It has also been stated in the affidavit in support of this application that the applicant is about Eighty years of age and of very infirm health. P. C. It has also been stated in the affidavit in support of this application that the applicant is about Eighty years of age and of very infirm health. It is the prosecution case itself that the applicant was arrested from the hospital. In his order releasing the applicant on bail the learned Additional Sessions Judge of Moradabad has also observed that the accused Abdul Aziz does appear to be aged about seventy years vide the opinion of Dr. D. S. Kapoor dated 25-6-1960. The application of Abdul Aziz before the Judicial Magistrate to summon witnesses, as the record shows, has remained unconsidered so far by the learned Magistrate. The learned Magistrate according to his note on that application thought that the prayer was premature at that stage and that he would consider the prayer after the prosecution evidence has come in. It shows that the learned Magistrate had not rejected the application but had left it for consideration at a later stage when the prosecution had produced its witnesses. In these circumstances it was the duty of the learned Magistrate to judicially consider the said application which he never did and passed the order of committal. 17. As a result of the above discussion I am of the opinion that there has been denial of opportunity to the accused applicant of being heard in the enquiry proceedings and the same are thus vitiated. I, therefore, quash the order of commitment of the applicant. It would be open to the learned Judicial Magistrate to hold a fresh enquiry against the applicant in accordance with law. Committal order quashed.