In Re: Vadlamudi Kutumba Rao

Krishna Rao, J.—This is a petition by the 1st accused in a preliminary inquiry case, P.R.C. No. 2 of 1955 on the file of the Additional First Class Magistrate, Bandar, to revise the order of the Magistrate dismissing an application made by the petitioner and his co-accused u/s 540, Criminal Procedure Code. The application was for summoning and examining as Court witnesses ten persons, who had been cited as direct witnesses in the police charge-sheet and who had been given up by the Assistant Public Prosecutor at the inquiry. It appears that the Assistant Public Prosecutor gave them up on the ground, that they turned hostile. But it was alleged in the application that they were given up with an oblique motive and that they were more important direct witnesses than those actually examined by the prosecution, almost all of whom were interested as they belong to the Kamma community. The Magistrate dismissed the application on the ground that the accused ought to examine the ten persons as defence witnesses.

The preliminary inquiry in this case is governed by the provisions of the Criminal Procedure Code prior to the Amendment Act XXVI of 1955. The learned Counsel for the petitioner contends that it was the duty of the prosecution to have examined all the direct witnesses cited in the charge-sheet, that in any event, it was the duty of the Court to do so under the provisions of Section 540, Criminal Procedure Code and that it is unjust to expect the defence to call on their side prosecution witnesses on the mere representation of the Assistant Public Prosecutor that they had turned hostile. For the position that it is the duty of the Court to examine such witness reliance was placed on a number of decisions such as In re. Donald! Dixon AIR 1938 Mad 900 902(A); In Re: Peria Guruswami Gounder and Another, and Sarfaraz Ali v. Emperor AIR 1941 Oudh 599(C). In the case of In re. Donald Dixon (A) the prosecution examined at the re-trial only one direct witness to prove the alleged offence of attempt to commit murder and gave up two witnesses who were present at the occurrence, on the ground that they had turned hostile. Commenting on their non-examination Panduranga Rao, J., said:

There may be some doubt as to the duty of the Public Prosecutor in a case of this kind for rulings on the point are not uniform though numerous, but there is a duty cast upon the Court to arrive at the truth by all lawful means and one of such is the examination of witnesses of its own accord when for certain obvious reasons neither party is prepared to call witnesses who are known to be in a position to speak to important relevant facts.

The decision in In Re: Peria Guruswami Gounder and Another, , dealt with a case where one of the three eye-witnesses was not examined in the Sessions Court On the ground that he was treated as hostile by the prosecution with the permission of the committing Magistrate. Wadsworth, J., who delivered the Judgment of the Division Bench said:

It is undoubtedly difficult to lay down any rule of universal application in such cases. It may be said that the Public Prosecutor should not be compelled to put forward as his own witness a man who has in the opinion of the Public Prosecutor committed perjury by giving evidence hostile to the prosecution in the lower Court, At the same time it does seem to us to be the duty of the Court, when there is an important eye-witness whom the Public Prosecutor does not wish to examine because he has been treated as hostile in the committal inquiry, to record the evidence of this witness and that the accused should not be forced to examine him as a defence witness. The proper course to take in such circumstances seems to us to be for the Public Prosecutor to see that the witness is pre-sent in Court and for the Court, if the witness is really important to examine that witness as a Court witness and allow both sides to cross-examine the witness.

In the case of AIR 1941 Oudh 599, an important prosecution witness named Faqir, who was declared hostile before the committing Magistrate, was not tendered by the prosecution for cross-examination in the Court of Session. The Division Bench said (p. 608):

Whatever view may be held on the question of the power of the Public Prosecutor to produce or withhold evidence, there is no doubt in our mind that the power of the Court is neither circumscribed nor fettered in any way to arrive at the truth in a criminal trial. Section 540, Criminal Procedure Code, gives ample powers to the Court to examine any person as a witness, whose evidence appears to it essential to the just decision of the case. We are of opinion that Faqir should have been in attendance in Court so that he could be examined by the Court u/s 540. Criminal Procedure Code.

It may be noticed that all these cases dealt with the non-examination of Important witnesses at the trial. They do not have a direct bearing on the duties of a committing Magistrate u/s 540, Criminal Procedure Code.

The learned Public Prosecutor contends that the prosecution are under no duty to examine a witness whom they consider to be unreliable, as shown to them by the fact that he has turned hostile. He has relied on the decisions in Abdul Gani and Others Vs. State of Madhya Pradesh, and Habeeb Mohammad Vs. The State of Hyderabad, . In the case first cited, the Supreme Court referred with approval to the following observations of AIR 1946 16 (Privy Council)

It is no doubt very Important that, as a general rule, all Crown witnesses should be called to testify at the hearing of a prosecution, but important as it is, there is no obligation compelling counsel for the prosecution to call all witnesses who speak to facts which the Crown desire to prove. Ultimately it is a matter for the discretion of counsel for the prosecution and though a Court ought, and no doubt will, take into consideration the absence of witnesses whose testimony would be expected, it must adjudge the evidence as a whole and arrive at its conclusion accordingly taking into consideration the persuasiveness of the testimony given in the light of such criticism as may be levelled at the absence of possible witnesses.

In Habeeb Mohammad Vs. The State of Hyderabad, , the Supreme Court referred with approval to the following observations in Stephen Senivaratne v. The King AIR 1936 P.C. 289.

(Their Lordships) cannot, speaking generally, approve of an idea that a prosecution must call witnesses irrespective of considerations of number and of reliability, or that a prosecution ought to discharge the functions both of prosecution and defence. If it does so confusion is very apt to result, and never is it more likely to result than if the prosecution calls witness and then proceeds almost automatically to discredit them by cross-examination. Witnesses essential to the unfolding of the narrative of which the prosecution is based, must, of course, be called by the prosecution whether in the result the effect of their testimony is for or against the case for the prosecution.

The learned Public Prosecutor''s position is that the Court is at liberty to draw an adverse Inference from the non-examination of witnesses by either party. But it is under no duty to examine them as Court-witnesses at the instance of one of the parties, when it is open to that party to call the witness as witness on his side.

It is a cardinal rule In the law of Evidence that the best available evidence should be brought before the Court. The provisions of Sections 60, 64 and 91 of the Evidence Act are based on this rule. The Court is not empowered under the provisions of the Code of Criminal Procedure to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. This must be left to those in charge of the prosecution or the defence. But in weighing the evidence the Court can take note of the fact that the best available evidence has not been given and draw an adverse inference. However, the decision of the question whether the best available evidence has been given is generally a matter of considerable difficulty for the Court. In the case of a witness who is not placed in the witness-box, it will often have to depend on interested allegations made by the parties or on inconclusive inferences from facts elicited in the evidence as to the integrity of the absent witness or his ability to give material evidence. This is the most important type of cases, in which the Court has to act u/s 540 of the Code. The first part of the section empowers the Court to summon and examine in its discretion at any stage of the proceedings any person as a witness, whether or not he has been summoned Or examined as witness. The second part of the section lays a duty on the Court to summon and examine a witness whose evidence appears essential to the just decision of the case. A committing Magistrate conducts the preliminary inquiry for the purpose of deciding whether there is sufficient evidence to place the accused on trial before a superior Court and it is obviously his duty to see that the best available evidence is placed before the trial Court. With this end, Section 209(1) specifically empowers him to call for any evidence besides taking such evidence as may be produced in support of the prosecution or on behalf of the accused.

In the instant case, the Magistrate approached the application made by the accused from wrong angle. He merely confined himself to the question whether the accused were in a position to obtain the evidence of the witnesses otherwise than as Court-witnesses. Apart from the unreasonableness of compelling the defence to call them as their witnesses he did not at all consider the question whether the best available evidence was going to the trial Court. Admittedly, the direct witnesses dispensed with by the prosecution belong to other communities than the allegedly interested community from which the witnesses actually examined were drawn. Prima facie their integrity stood on a higher footing and as they were direct witnesses their ability to give material evidence was unquestionable. In the circumstances he ought to have clearly come to the conclusion that the best available evidence had not been given and that his duty was to take she evidence of the witnesses in question. The Magistrate''s order therefore set aside and he is directed to examine the witnesses in question as Court-witnesses.