JUDGMENT : R.N. Misra, J. - The two Petitioners have been committed to stand their trial in the Court of Session for an offence punishable u/s 326, Indian Penal Code by the learned Sub-Divisional Magistrate of Jagat singh pur. 2. In G.R. Case No. 325 of 1969 which was one u/s 326, Indian Penal Code the accused parsons had already been committed to the Court of sessions after a full-fledged enquiry u/s 207-A, Code of Criminal Procedure when this complaint Case came up before the learned Magistrate he found that it was the counter case to the aforesaid G.R. Case and since that bad already been committed to the Court of sessions the learned Magistrate without making any enquiry and taking any evidence committed the Petitioners to stand Their trial in the Court of sessions. This Action of The learned Trying Magistrate is questioned in The present petition. 3. There is no dispute that to the preset case Section 208, Code of Criminal Procedure would apply. That section provides: (1) In any proceeding instituted otherwise than on a police report, the Magistrate shall, when the accused appears or is brought before him proceed to hear the complainant (if any), and take in manner hereinafter proceeded all such evidence as may be produced in support of the prosecution or on behalf of the accused, or as may be called for by the Magistrate. (2) The accused shall be at liberty to cross-examine the witnesses for the prosecution, and in such case the prosecutor may re-examine them. (3) If the complainant or officer conducting the prosecution, or the accused, applies to the Magistrate to issue process to compel the attendance of any witness or the production of any document or thing, the Magistrate shall issue such process unless, for reasons to be recorded, he deems it unnecessary to do so. (3) If the complainant or officer conducting the prosecution, or the accused, applies to the Magistrate to issue process to compel the attendance of any witness or the production of any document or thing, the Magistrate shall issue such process unless, for reasons to be recorded, he deems it unnecessary to do so. xxx Section 209, Code of Criminal Procedure provides: When the evidence referred to in Section 208 Sub-sections (1) and (sic), has been taken, and he has (if necessary) examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against, him, such Magistrate shall if he finds that there are not sufficient 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 him self or some other Magistrate, in which case he shall proceed accordingly. x x x The position in regard to proceedings instituted on police report (Section 207.A) and proceedings instituted otherwise than on police report is different. It is possible for the learned Magistrate to make an order of commitment in a case covered u/s 207-A, Code of Criminal Procedure without examining any evidence. In fact that has been concluded by a decision of their Lordships of the Supreme Court in Shri Ram v. State of Maharashtra AIR 1961 S.C. 674 . Therein their Lordships stated: Our view could now be expressed in the following propositions (1). In a proceeding instituted on a police report, the Magistrate is bound to take evidence of only such eye-witnesses as are Actually produced by the prosecution in Court, (2) The Magistrate, if he is of opinion that it is in the interest of justice to take evidence, whether of eye-witnesses or others, has a duty to do so, (3) If the Magistrate is not of that opinion and if the prosecution has not examined any eye-witnesses, he has jurisdiction to discharge or commit the accused to sessions on the basis of the documents referred to in Section 173 of the Code, (4) The discretion of the Magistrate under Sub-section (4) is a judicial discretion and, therefore, in appropriate cases the order of discharge or committal, as the case may be, is liable to be set aside by a superior Court. Section 208, Code of Criminal Procedure however, prescribes a different procedure. Section 208, Code of Criminal Procedure however, prescribes a different procedure. Unless there be evidence u/s 209, Code of Criminal Procedure he is called upon to discharge the accused. Mr. Bohidar for the opposite party relied upon the judgment of this Court in Criminal Reference No. 91 of 1970.? In the reference under somewhat similar circumstances I had stated: The order of commitment was ?made on 15-1.1969. Nobody disputed the order. In due course this case became the Subject matter of Sessions Trial No. 2K of 1969 and its trial was to be taken up on 6-4-1970. While evidence in this case was about to begin the learned Sessions Judge made this reference. It appears to be a sue motu reference. There is no justification for this reference. For the reasons indicated by the Full Bench of the Allahabad High Court in Rex v. Matoley 50. Cr.L.J. 59 (F.B.). I think the impugned order of the learned Magistrate was valid. From what has been laid about it would appear that at a belated stage the learned Sessions Judge himself wanted the commitment to be Bet aside. As the accused persons had not challenged the commitment and the trial was already about to begin I bad declined to interfere. In this case the position seems to be different. Immediately after the commitment the accused persons have come before this Court challenging the Action of The learned Magistrate. I think the Action taken by the learned Magistrate is contrary to law. He was bound to take evidence and in the absence of evidence he could not make the commitment order. If there be a case and a counter case, one triable exclusively by the Sessions Judge and the other triable by the Magistrate, both can be committed to the Court sessions but the Magistrate must come to the conclusion that there is evidence to support the charge and unless such a conclusion is reached the case cannot be committed to the Court of sessions merely because a cross case is pending in the sessions Court. This analysis is clearly supported by the two sections. In the Code of Criminal procedure. Judicial view also supports that conclusion. Mohammad Basir v. The State of U.P 1956 All. L.J. 454. In the circumstances the order of commitment cannot be sustained and has to be quashed. 4. This analysis is clearly supported by the two sections. In the Code of Criminal procedure. Judicial view also supports that conclusion. Mohammad Basir v. The State of U.P 1956 All. L.J. 454. In the circumstances the order of commitment cannot be sustained and has to be quashed. 4. I would, however, like to make it clear that it is open to the learned Magistrate in case he is moved by the complainant to take immediate steps to record evidence in the manner required under the law and in case he is satisfied that there be need to make commitment, he would commit the case in accordance with law. Unless such commitment be over within two months the learned sessions Judge shall be free to proceed with the trial of the case already committed without waiting for Action in this case. The revision application is allowed. Final Result : Allowed