Asadullah Patwari vs State

J.N. Wazir, C.J.—This is a revision application directed against the order of the Sessions Judge allowing the prosecution to produce some

more witnesses besides those mentioned in the previous list. The learned Counsel for the accused petitioner has argued that the Sessions Judge

ought not to have summoned witnesses other than those mentioned in the prosecution list. It is argued that Section 252 (2), Criminal P. C, has no

application to the present case and it was not open to the Sessions Judge to summon witnesses whose names were not included in the list of

witnesses originally filed by the prosecution.

It may be mentioned here that the accused is undergoing trial u/s 161 of the Ran-bir Penal Code and Sub-section (2) of Section 5 of the

Prevention of Corruption Act No. XIII of 2006. u/s 6 of the Criminal Law Amendment Act the Government has power to appoint special Judges

and under Sub-section (2) of Section 6 Sessions Judge or Additional Sessions Judges alone are qualified for appointment as special Judges.

The Sessions Judge Kashmir has been appointed as a Special Judge for trying offences mentioned in Clause (a) of Sub-section (1) of Section 6 of

the Act. Offences u/s 161, R. P. C, and Sub-section (2) of Section 5 of the Prevention of Corruption Act are triable by the special judge and

therefore the accused is being tried for those offences by the Sessions Judge Kashmir.

The procedure for the trial of these offences is laid down u/s 8 of the Act which provides that a special judge may take congnisance of offences

without the accused being committed to him for trial and in trying the accused persons shall follow the procedure prescribed by the Code of

Criminal Procedure for the trial of warrant cases by Magistrates.

u/s 252 (1) when the accused appears or is brought before a Magistrate such magistrate is required to hear the complaint and take all such

evidence as may be produced in support of the prosecution. Under this Section it is incumbent on the magistrate to record the statement of all the

witnesses who are produced in support of the prosecution case. Under Clause (2) of Section 252 the Magistrate has to ascertain from the

complainant 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 the

Magistrate is required to summon such of the witnesses as he thinks necessary.

There is no bar found in any of the provisions of the Criminal Procedure Code which precludes the prosecution from producing more witnesses

than are mentioned in the list already furnished. Section 252 (1) does not impose any limitation on the prosecution in respect of the evidence which

it wants to produce and the Sessions Judge was fully justified in summoning other witnesses whose names did not find place in the original list.

There is no suggestion on the part of the petitioner that by summoning additional witnesses the prosecution was making a new case against the

accused. It has been stated by the Advocate General that the additional witnesses were already examined by the Police and their statements were

recorded in the Police diaries. The accused petitioner was aware of those statements and the accused could obtain copies of those statements u/s

162 of the Criminal Procedure Code before the witnesses are examined by the Sessions Judge.

Moreover, there is ample authority for the proposition that there is no limit imposed on the prosecution in respect of the production of additional

witnesses if it finds that it is necessary to produce such witnesses to prove the prosecution case. In The State of Bombay Vs. Nilkanth Shripad

Bhave and Another, , it has been held that the duty of the prosecution is certainly to make a complete and prompt investigation and to name all

necessary witnesses in the list attached to the ehallan. But that is a counsel of perfection, and it may happen that one or two gaps may be detected

afterwards, especially in cases of some complexity.

Where it was unavoidable that the evidence should be spread over a number of days and not taken continuously and the prosecution has put in an

additional list of witnesses to make the prosecution case complete by closing gaps, the High Court would not interfere with Magistrate's order

allowing prosecution to do so.

In The State of Bombay Vs. Nilkanth Shripad Bhave and Another, it has been held that although the complainant had given the names of the

witnesses whom he wanted to examine in the complaint it was open for him to bring to the notice of the Court the names of any further witnesses

who were acquainted with the facts of the case. When this was done by the complainant it was incumbent upon the Magistrate u/s 252 (2),

Criminal P. C., to examine the list newly filed and call for necessary information on this matter from the complainant. This he did not do.

Hence under the circumstances of the present case the order passed by the magistrate closing the prosecution case and refusing to summon

witnesses cited was erroneous and ought not to stand.

From the above rulings it is abundantly clear that even though the complainant initially gave the names of the witnesses whom he wanted to

examine it is still open to him to produce additional evidence. In these circumstances I see no reason to interfere with the order passed by the

Sessions Judge. This revision application is accordingly dismissed.