Jamuna Rani vs S. Krishna Kumar and Others

G. Radhakrishna Rao, J.—The Criminal Revision Case No. 280 of 1992 is filed by the petitioner against the order of discharge Passed in C.C. No. 19 of 1990 on the file of the J.F.C.M. Pathikonda, dt. the 31st of March, 1992. The Criminal Petition, Crl.P. No. 1097/1992 is filed by the petitioner against the order of dismissal passed in Crl. R.P. No. 11 of 1991 by the III Additional Sessions Judge, confirming the order passed in Crl.M.P. No. 106/91 in C.C. No. 19/1990 passed by the J.F.C.M. Pathikonda. The facts in brief are as follows :

A private complaint was filed by the complainant (wife) against the accused (husband) in the court of the J.F.C.M. Pathikonda, for the offence under S. 494 read with 109, IPC. A sworn statement of the complainant was recorded on the date of the complaint, i.e. on 26-2-90 and on the same day the complaint has been taken on file as C.C. 19/90 and process was issued for the appearance of the accused.

The facts which lead to the filing of the above complaint was that on 26-2-1981 the first respondent married the complainant according to Hindu rites and rituals at Arya Vysya Choultry in Jurabalakota, Madanapall taluk. They lead married life for a short period. Thereafter, she was harassed by respondents, 1, 3 and 4 for not bringing dowry of Rs. 25,000/- and she was forcibly left in her parents house. As she had no means to maintain herself, she filed M.C. 4/83 on the file of J.F.C.M. Kuppam and she was awarded maintenance. The first respondent also filed a petition for divorce against the complainant which is pending. Taking advantage of the official position of respondent No. 3 the first respondent married the second respondent on 15-7-89 while the first marriage was still subsisting. Therefore, the complainant filed the above complaint against the husband for the offence under S. 494, IPC and against respondents 2 to 5 for the offence punishable under Ss. 494 read with 109, IPC.

After the process was issued for the appearance of the accused, all the witnesses who were mentioned in the list appended to the complaint, were examined and the last witness appended to the list was examined on 5-2-91. On the same day i.e. on 5-2-91, before the order of discharge has been passed by the Magistrate, a supplemental list of witnesses consisting of four persons with an application under S. 311 Cr.P.C. was filed to issue summons to those witnesses also. The learned Magistrate Registered the same as Crl.M.P. No. 106/91 and he held that either the complainant or the accused have no power or right to request the court to examine witnesses under S. 311, Cr.P.C. He further held that the power to summon witnesses under this Section is a special one and it is quite different from the power under other Sections of the Code, on the application of the parties who have a right to process. The parties to a case cannot dictate to a Court over the summoning of the witnesses under this Section and that the discretion to summon vests solely in the court alone and no compulsion can be placed upon any court to summon a witness, particularly in a case where the court has come to the conclusion that the evidence of the witness concerned would not be necessary. He further held while considering the scope and ambit of S. 244, Cr.P.C. that there is no provision under S. 244, Cr.P.C. to file a second list of witnesses at the stage of enquiry before framing the charge instituted otherwise than on a police report. For the above reasons, he dismissed the petition holding that the same is not maintainable. Consequent on passing of this order a discharge order has been passed against which the petitioner filed Crl.R.C. 280/92 in this Court.

Now the main point that has to be decided in this case is, when a complaint has been filed listing out certain number of witnesses, whether the complainant can be permitted to submit a further list of witnesses before the order of discharge is passed and whether the same can be entertained by the Magistrate. The language that has been adopted that has been adopted in S. 244, Cr.P.C. is very clear. S. 244 of the Criminal Procedure Code reads thus :

"244. Evidence for Prosecution : (1) When, in any warrant case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution.

(2) The Magistrate may, on the application of the prosecution, issue a summon to any of its witnesses directing him to attend or to produce any document or other thing."

On an identical point when it had come up for consideration before the Madras High Court, the learned Judges held in K. Somasundaram Vs. Gopal and Another, that the list filed under S. 204(1-A) can be added to by supplemental lists accompanied by applications to the Court to summon those new witnesses. Such supplemental lists can be in addition to all the witnesses in the primary list filed by the private complainant under S. 204(1) Cr.P.C. or in addition only to such of the witnesses in the primary list whom he decides to examine. The phrase "take all such evidence as may be produced in support of the prosecution" in S. 244 and S. 244 and S. 252(2), Cr.P.C. shows the ample powers of the Court in this respect.

The same point has again been considered by the Madras High Curt in S. Vivekanantham Vs. R. Viswanathan and Others, and the learned Judges reiterated the same. In that case also the Complainant furnished a list of 4 witnesses. He gave up the examination of two witnesses in that list and later he requested the court to summon ten witnesses and have them examined under S. 311, Cr.P.C. Realising that the Court may not be interested to summon those persons and examine them as Court witnesses, the petitioner withdrew that petition and filed another petition praying for permission to cite those ten witnesses as additional witnesses on the complainant''s side and to have them examined. The learned Judges held that S. 244 is wide enough to give power to a Court to accept a supplemental or additional list of witnesses given by a complainant and to issue summons to them and record their evidence. They further held as follows (at page 427; or Cri LJ) :

"Though S. 204(2) of the new Code prescribes that no summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed, that cannot be taken to mean that a complainant is irretrievably chained to the first list of witnesses filed by him and he cannot seek the permission of the Court to examine additional witnesses even where circumstances or interests of justice warrant such examination. To hold otherwise would actually lead to grave injustice and hardships to complainants."

The same is the view taken by the Bombay High Court in State of Bombay Vs. Janardhan and Others, . But the learned Judges went further and put a rider saying that the Court should not, however, give permission to add names to the list if it is going to prejudice the case of the accused or if it is not in the interests of justice. But what is contemplated under S. 204(1) is only giving out a list of prosecution witnesses by the complainant and if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, he shall issue summons or warrants as the case may be. But S. 244 says that the Magistrate shall take all such evidence as may be produced in support of the prosecution to substantiate the charge, which means that it does not confine only to the list of witnesses mentioned at the earliest point of time. The Court has got ample power, before the order of discharge is passed, to entertain the application of the complainant with regard to the examination of the witnesses sought to be examined in support of the charge. Not only the persons listed in the complaint but also any other person who has got knowledge or who has got something to say about the complaint alleged therein, can be examined if such an application is made by the complainant before the order of discharge is passed. So, the Magistrate at the earliest point of time has no discretion to dismiss the application to examine some more witnesses other than the persons mentioned in the list. To make it more clear, the complainant has got absolute right to produce the evidence in support of the charge at any time before the discharge order is passed, and for that purpose he can make an application to examine some more witnesses apart from the witnesses mentioned in the list appended to the complaint. While considering S. 244, Cr.P.C. the Allahabad High Court in Nawal Kishore Shukla and Others Vs. State of U.P. and Another, held that the Court can permit examination of the witnesses not mentioned in the list and that it is not necessary that all the witnesses named in the list of witnesses should have been examined before such a permission is granted. Taking into account the views expressed by the Madras, Bombay and Allahabad High Courts and on interpreting ''all such evidence'' in S. 244, I feel that it does not limit to the witnesses mentioned in the list appended to the complaint but it refers to any other witness mentioned in a subsequent application filed before the discharge order is passed the Magistrate.

The other ground for rejection is that the application has been filed under S. 311, Cr.P.C. and that it ought to have been filed under S. 244 Cr.P.C. Mere quoting of a wrong provision of law does not mean wrong provision of law does not mean automatic dismissal, particularly, then it is made clear in the affidavit that the complainant wants to examine some more witnesses other than those mentioned in the list and also when the averments in the affidavit discloses that a prima facie case is there. So, the order or rejection that has been passed on the application for examination of the witnesses mentioned in the supplementary list is set aside. As this Court found that the petitioner has got a right to examine some more witnesses other than those mentioned in the list appended to the complaint and the court is bound to summon the witnesses, the order of discharge which is consequential order has to be set aside and it is accordingly set aside. The Lower court is directed to proceed from the stage of the application made by the complainant for examining the witnesses mentioned in the supplementary list and dispose of the case in accordance with law.

In the result, both the criminal petition Crl.P. No. 1992 and the Criminal revision case Crl.R.C. No. 280 of 1992, are allowed.

Order accordingly.