Jagat Ram and Another vs The State

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

produce Dr. Gandotra, Munshi Singh and Rasila as witnesses in support of its case.

It appears that during the trial an application was made by the prosecution on 24th June, 1966 praying that Dr. Gandotra be allowed to be

produced as a witness. On 25th June, 1966 another application was made by the prosecution before the Sessions Judge seeking permission to

produce Munshi Singh and Rasila as witnesses. Objections were taken on behalf of the accused to the production of these witnesses as they were

neither examined in the Committing Court nor were their names included in the list of witnesses proposed to be examined by the prosecution. The

learned Sessions Judge overruled the objections raised by the accused and allowed the prosecution to produce the witnesses mentioned in the

applications. Against that order the accused have come up in revision to this Court.

It is contended on behalf of the petitioners by Mr. Ishwar Singh that the Sessions Judge had erred in allowing the witnesses to be produced at

the stage when all the prosecution evidence had been recorded by the Sessions Judge. It is contended that the production of these witnesses would

certainly prejudice the case of the accused. My attention has been drawn to Section 286, Cr.P.C. which reads as under:

286 (1) In a case triable by jury, when the jurors have been chosen or, in any other case, when the Judge is ready to hear the case, the prosecutor

shall open his case by reading from the Ranbir Penal Code or other law the description of the offence charged, and stating shortly by what

evidence he expects to prove the guilt of the accused.

2 The prosecutor shall then examine his witnesses.

It is argued that the word 'evidence' used in Section 286(1) means the witnesses whom the prosecution has produced before the Committing Court

and no other witnesses other than those produced in the Committing Court or mentioned in the list of witnesses furnished before the Sessions

Court can be produced by the prosecutor. This contention is untenable. u/s 286(1), Cr.P.C. it is the right of the prosecution to produce as many

witnesses as they want to prove the guilt of the accused. There is nothing in the Code of Criminal Procedure which precludes the prosecutor from

producing the witnesses other than those who nave already been examined in the Committing Court. Sub-section (2) of Section 286 allows the

prosecutor to produce his witnesses without any irritation irrespective of the fact whether these witnesses were examined in the Committing Court

or not. It is true that the prosecutor cannot ask the Court to summon those witnesses who are not mentioned in the list filed in the Sessions Court,

but if the witnesses are present in Court and the prosecutor wants to produce them in order to prove the guilt of the accused there is nothing to

debar him from doing so. In this view I am supported by the ruling of the Supreme Court, Bhagwan Singh Vs. The State of Punjab, , in which it is

held as under:

There is no rule that a witness who was not produced in the committal proceedings cannot be examined in the Sessions Court. The Sessions

Court can u/s 540, Cr.P.C. examine witnesses who were not examined before the Committing Magistrate. If such a witness is treated as a

prosecution witness and is examined by the prosecuting counsel instead of by the Court itself, it would be at best an irregularity curable by Section

537, Cr.P.C."" In the present case Dr. Gandotra's report has already been filed and a copy thereof, as stated by the Sessions Judge, has been

handed over to the accused. Munshi Singh another witness whom the prosecution wants to produce had lodged the first information report and his

statement is contained therein. The learned Sessions Judge has further remarked in his order that the accused will be supplied with a summary of

the evidence which the additional witnesses are expected to give in the Court within a reasonable time to afford opportunity to the accused to cross

examine them. There is, therefore, no prejudice which will be caused to the accused by the production of these witnesses. In State of Bombay v.

Mohamad Khan AIR 1960 Bom 150, it is observed as follows:

Now, it seems to me that ordinarily in a criminal trial it is the right of the prosecution to examine as many witnesses as they choose unless their right

is curtailed by some provision of law. There is nothing in the Code of Criminal Procedure to limit the right of the prosecution only to examining

witnesses examined before the Committing Magistrate, and in so far as Section 286 gives the prosecutor an option to examine his witnesses after

opening his case, it seems to me that the prosecution may examine in the Sessions Court witnesses other than those mentioned before the

Committing Magistrate.

No doubt, at this stage, it would not be open to the prosecution to have fresh witnesses summoned for the purpose of their evidence being taken

and considered in the trial.

The same view has been taken In re B.K. Narayana Reddi AIR 1941 Mad 824 wherein it has been laid down:

Under Section 286 the prosecution is not confined to the witnesses examined before the Committing Magistrate but may examine other witnesses

as well in the Sessions Court. But the Crown is not entitled to have fresh witnesses summoned for the purpose of their evidence being taken and

considered in the trial. If the prosecution have additional witnesses ready and available to them for giving evidence, their evidence can be taken and

there is no legal objection to this course.

The learned Sessions Judge has rightly allowed the prosecution to produce all the witnesses who were brought by the prosecution to prove the

guilt of the accused. There is no good ground to interfere with the order passed by the Sessions Judge in revision. This application is dismissed.