Harichand vs Gopal Krishan etc.

Vyas Dev Misra, J.

(1) A recommendation has been made by the Additional Sessions Judge, Delhi, for quashing the order of the Magistrate, dated 17th April. 1969, refusing tore- cord the statement of Parama Nand on behalf of the complainant Hari Chand had filed a complaint u/s 323, IP.C against Gopal Krishan and five others. He had submitted a list of witnesses u/s 204(1-A) C.r. P. C., before the summons were issued to the accused. In that list the name of Parma Nand was not mentioned. Later on, during the trial on 17th April, 1969, Prem Pal was examined and the complainant requested the Court to examine Parma Nand also who was present in Court. This request of the complainant was turned down by the trial Magistrate on the ground that his name was not mentioned in the list of witnesses. The complainant thereafter went in revision to the Sessions Judge.

(2) The only question to be decided by me is whether a person whose name is not mentioned in the list of witnesses put in u/s 204(1-A), Criminal Procedure Code ., can be examined by the Magistrate, ill the instant case, the Magistrate was recording the statements of witnesses u/s 244, Criminal Procedure Code . This enjoins upon the Magistrate to "take all such evidence as may be produced in support of the prosecution." There is no provision in Chapter Xx which deals with the trial of summons cases by the Magistrate, which requires the complainant to put in any list of witnesses. It is true that u/s 204 (I-A) , Criminal Procedure Code . , there is a provision requiring a list of witnesses to be put in by the complainant but that is a provision which relates to proceedings before the accused are summoned. Once the accused has been summoned and the trial starts then the provisions of section 244, Criminal Procedure Code . , become applicable and since it does not require the complainant to put in any list or to confine to the list already put in by him u/s 204(1-A), Criminal Procedure Code . , it cannot be said that the Magistrate can refuse to take down the evidence of of those witnesses who are produced by the complainant. It is true that in case the complainant seeks the help of the Court for the production of those witnesses who are not mentioned in the list put in u/s 204 (1-A), Criminal Procedure Code ., the Magistrate may rightly refuse to issue summons or warrants as the case may be.

(3) I find that similar previsions have been framed under Chapter Xi in section 251-A, sub-section (7) and section 252 , Criminal Procedure Code . Both these provisions enjoin upon the Magistrate to record the evidence as may be produced by the prosecution and the complainant respectively In Criminal Revision No. 151 of 1967 Shil D. S. Brndra v. Shri Ajit Singh, decided on the 1st May, 1967, by this Court, a similar question had arisen with respect to the interpretation of the provision u/s 252, Criminal Procedure Code . In that case the statement of a witness who was not mentioned in the list of witnesses put in u/s 204(1-A) had, infact, been recorded and the question arose whether any illegality had been committed by the Magistrate. While considering that legal aspect, Hegde, C. J., (Now Hon''ble Judge of the Supreme Court) took into consideration Ali Jan Vs. Amir Khan, , Nathia and Another Vs. Sonia and Others, and agreed with those decisions . K. Sotnasundaram v. Gopa and another, A.I. R. 1958 Mad 341, State of Bombay v. Junardhan and others, A.I. R. 1960 Bom 513, Mochi Moli Lal Jagijimndas v. The State and others, 1961(2) Cr. L.J. 474 were also considered but were not relied upon. I am in respectful agreement with the view expressed by Hegde, C.J. , in that revision. The learned counsel for the respondents referred to the decision in Dalip Singh Gujar Singh Vs. R.P. Biswasj, , to support his contention that the complainant should put in supplementary list of witnesses before he should be allowed to summon them. I have gone through this judgment and it relates to the interpretation of various provisions relating to the case of warrant trial on the basis of a complaint. u/s 252, Criminal Procedure Code . a duty is cast on the Magistrate to ascertain from the complainant the names of the witnesses and in case the Magistrate has ascertained those names, it was held that no other witnesses could be summoned. Since the question to be decided in that case was entirely a different one, I express no opinion about that.

(4) The learned counsel for respondents also urged that Parma Nand witness, in fact, had been summoned by the Magistrate and he was present in the Court because of the summons. I am not concerned with the reason as to why the witness was present in Court. As long as the witness was present in Court at the time the complainant''s evidence was being recorded and the complainant requested the Court to examine that witness, it was the duty of the Court to examine him.

(5) I would, Therefore, accept the recommendation made by the learned Additional Sessions judge and quash the orders of the Magistrate, dated 17 the April, 1969. The parties are directed to appear before the Chief Judicial Magistrate on the 30th January, 1970.