Brijnandan Prasad Singh vs Emperor

We are of opinion that before this appeal is disposed of, the appellant should be given an opportunity to examine certain witnesses whom the learned Sessions Judge declined to summon on the ground that the accused had applied for their being summoned at a very late stage. It would appear that this case was committed to the Court of Session on 9th January 1933 and several months later, on 20th April 1933, four new witnesses were examined on behalf of the prosecution before the committing Magistrate u/s 219, Criminal P.C. On 21st April 1933 the appellant filed a petition before the Magistrate asking him to summon six witnesses other than those mentioned by him in his previous list and this petition was to the following effect:

That the prosecution have examined four new witnesses who were not named in the petition of complaint and have adduced new evidence on 20th April in the Court of Mr. A.W. Khan, Deputy Magistrate, who has committed to the Court of Sessions. That it is very necessary for the defence to summon some new defence witnesses in order to rebut the evidence adduced by the prosecution. The list is attached herewith. In these circumstances your petitioner requests your honour to kindly call for the record and summon the defence witness for the sake of justice. Otherwise the accused will be greatly prejudiced.

The learned Magistrate to whom this application was made was apparently satisfied about the bona fides of this application and so he made the following note on the petition:

Forwarded for orders. The costs of witnesses 1 and 2 must be deposited by the accused before they are summoned. The relevancy of the evidence which these witnesses are going to give has been explained to me and I am satisfied.

When this petition was put up before the learned Sessions Judge he recorded the following order:

The accused has all along been on bail. The trial begins on 24th April 1933. No more witnesses can be summoned at this stage. The accused may produce them before the Court if he can. The application rejected.

Now, one of the grounds taken on behalf of the appellant in this Court is that when the Magistrate before whom the four additional prosecution witnesses had been examined was satisfied that the evidence of the new witnesses sought to be summoned by the accused was relevant, the learned Sessions Judge ought to have given an opportunity to the accused to summon those witnesses and to examine them.

Mr. Varma who appears for the appellant does not press for the examination of the first four witnesses mentioned in the list of 21st April, particularly in view of certain admissions made by the prosecution before the Sessions Judge when the trial commenced and because one of these witnesses Ramrangesh Sharma has already been examined as a prosecution witness. He contends however that he is entitled to examine the remaining two witnesses and the evidence of these two witnesses will be very material to his defence. One of these witnesses Jwala Kuer appears to be one of the signatories to the petition which was filed against the appellant upon the basis of which the prosecution was started.

In our opinion having regard to all the facts, of the case and particularly to the fact that the prosecution was allowed to examine new witnesses long after the commitment and that the Magistrate to whom the accused applied in the first instance for summoning new witnesses was satisfied as to the relevancy of their evidence, the accused should be given an opportunity to examine the two witnesses 5 and 6 mentioned in his second list, namely, Balaram Prasad, Clerk to the District Inspector of Schools and Jwala Kuer.

We therefore direct that the record of the case be sent to the District Magistrate and he be asked to have these two witnesses summoned and their evidence recorded as soon as possible by the Magistrate who committed the case to the Court of Sessions or if he is not available by any other Magistrate subordinate to him and to forward such evidence, if any is recorded, to this Court. Mr. Varma has been asked to instruct his client to take necessary steps for the examination of the witnesses before the Magistrate. The hearing of the appeal will be continued after the evidence has been recorded and such evidence with the record is received back by this Court.