Amin Lal vs Mata Din and Another

Bedi, J.—The facts giving rise to this revision petition are as under :

Mata Din who is respondent before me lodged a complaint against Amin Lal, Tarlochan Singh, petitioners and Niranjan Lal (against whom proceedings were subsequently dropped) under sections 170, 149 and 511 of the Penal Code. The Magistrate, Shri Parkash Chand Saini after summoning the accused, recorded the statements of the complainant and his witnesses and after hearing the arguments of the parties, discharged the accused finding that there was no prima facie case against them vide his order dated 23rd April, 1962. Mata Din filed a revision petition against that order in the Court of Session which came up before Shri Sukhdev Singh Sidhu, Additional Sessions Judge, Mohendargarh, who accepted the same, set aside the order of the Magistrate dated 23rd April. 1962 and passed an order u/s 436, Cr.P.C. asking the Additional District Magistrate at Narnaul to himslf make or direct any subordinate Magistrate to make further enquiry into the complaiat of the complainant and then dispose of the same in accordance with law. The parties were directed to appear before the Additional District Magistrate on 16th September, 1963. This order was passed by the Additional Sessions Judge on 24th August, 1963. Amin Lal and Tarlochan Singh felt aggrieved against that order and approached this Court in revision.

The learned Additional Sessions Judge quoted the provisions of section 252 (2), Cr. P. C. and found that the Magistrate had not applied those provisions which were mandatory. This provision of law runs as under:

(2) The Magistrate shall ascertain, from the complainant or otherwise, the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and shall summon to give evidence before himself such of them as he thinks necessary.

It is true that the Magistrate observed in his judgment that although there were some other witnesses present at the spot and yet they were not examined. The evidence of the witnesses who were in fact examined by him was discussed and rejected by the Magistrate on various grounds given in his judgment. I feel that the view taken by the learned Additional Sessions Judge was erroneous. I find that five witnesses were examined by the complainant and after that he closed his case in the presence of his counsel. In view of the above, it has to be seen whether the provisions of section 252 (2), Cr.P.C., have been compiled with. This point was lucidly discussed by a Full Bench, consisting of Din Mohammad, Munir and Teja Singh JJ., of Lahore High Court, in AIR 1945 201 (Lahore) and it was observed:

The provisions of S. 252(2) are mandatory and the Magistrate must ascertain the names of all the persons who may be able to give evidence for the prosecution and this duty must be performed before the charge is framed. In cases where the offence is taken cognizance of on a police report the police in submitting their report under S. 173 of the Code are required by the form which is prescribed in the Punjab for that report to give a list of all the witnesses for the prosecution. The mere existence of this list, however, does not relieve the Magistrate of the duty to as certion the names of the witnesses under S. 252 (2) and he is bound to question the complainant or the officer in charge of the prosecution about the matter. Where before the charge is framed all the witnesses mentioned in the list have been examined and the complainant or the officer in charge of the prosecution makes a statement that he closes his case and has no further witnesses to examine, the Magistrate may treat such statement as tantamount to a statement that there are no other persons acquainted with the facts of the case who may be able to give evidence for the prosecution, and he need not specifically question the complainant, or the officer in charge of the prosecution on the matter. When before the charge is framed, the list of persons who may be able to give evidence for the prosecution has been ascertained under S. 252 (2) no fresh witnesses can be examined by the prosecution under S. 256 after the charge is framed and the prosecution can only apply to the Magistrate to examine them u/s 540 under which the Magistrate has a discretion in the matter." Bearing in mind the above observations, I feel that the provisions of section 252 (2), Cr.P.C. have been amply complied with in the present case. The learned counsel for the complainant cited K.C. Menon v. P. Krishna Nayar AIR 1026 Mad 989, and Premraj v. The State AIR 1052, but the facts in those cases were quite different. It does not appear that in those cases the complainant had closed his evidence.

The complainant''s counsel then submitted that heavens would not fall if the complainant is given an opportunity for producing one or two more witnesses, but this argument is neither here nor there; because it would mean further harassment to the petitioners. If the Magistrate ad found as a fact that recording of other evidence was necessary or material for the proper decision of this case, he could have summoned those witnesses u/s 540, Cr.P.C. I, therefore, accept this petition and set aside the impugned order.