K. Somasundaram vs Gopal and Another

A.S. Panchapakesa Ayyar, J.—This case was directed by the Hon''ble the Chief Justice to be posted before a Bench on the

recommendation of Ramaswami, J. that a Bench should hear and dispose of the matter in view of the then existing conflict regarding the legal

questions involved in the case between the judgment of Somasundaram, J. in In Re: V.S. Ramanathan, , and a judgment of a Bench of this Court in

Tirumal Thevar v. State 1957 Mad WN (Cri) 165 : AIR 1958 Mad 135 (B), and the judgment of Ramaswami, J. in Arumugam Solathirayar v.

Ponnalagu Pandrar 1957 Mad WN Cri. 125 : AIR 1958 Mad 127 (C), and the Supreme Court judgment indirectly bearing on the question in

Narayana Rao v. State of Andhra Pradesh 1957 2 M.L.J. 15 short notes (D).

Since the reference was made to this Bench, as the learned Public Prosecutor has urged, Somasundaram, J. has, in view of the observations of the

Supreme Court in the judgment cited above, modified his original view, in Public Prosecutor v. Pachiappa Mudaliar Cri RC Nos. 405 to 407 of

1957 : AIR 1958 Mad 295 (E), the judgment in which was delivered on 21-11-1957 but it remains un-reported till now. In his judgment,

Somasundaram, J. practically fell into line with tho other rulings cited above which have held that the Court has got a discretion to summon

witnesses not named in the list filed u/s 204 (1-A), Cr.PC So, at present, there is no real conflict regarding any of the three questions which arise in

this case. Still, as a reference has been made to this Bench we shall answer the three questions.

The first question is whether a private complainant in a summons or Warrant case, who has filed a list of prosecution witnesses u/s 204 (1-A),

can file a supplemental list of witnesses later on, after giving up some or all the witnesses in the first list or in addition to them, and whether the

Court can summon and examine them if it thinks fit. The second question is whether he can give up some or all of the witnesses cited in the first list,

filed, u/s 204 (1), Cr.PC and the third question is whether the Magistrate should apply his mind and direct issue of summons to the witnesses in the

supplemental list, or whether he should automatically do so, without using his discretion whether to summon them or not, and whether notice should

go to the accused; with the list of witnesses named in the supplemental lists.

As the Jaw stands at present, there is no conflict in this respect. The answer to the-first question will be that the complainant can file a

supplemental list or even a third list etc. of prosecution witnesses, though he has filed a list of prosecution witnesses u/s 204 (1-A) for the purpose

of having summons or warrant issued against the accused. The phrase ""take all such evidence as may be produced in sup-, port of the prosecution

in Section 244 (1), and Section 244 (2) and Section 252 (2), Cr.PC shows the-ample powers of the Court in this respect. Section 204 (1-A)

simply says that no summons or warrant shall be issued against the accused u/s 204 (1) until a list of prosecution witnesses has been filed.

It does not say that that list should be communicated to the accused. Nor does it say-that that list shall not be added to or varied from. Of course,

it must be- taken that the list filed u/s 204 (1-A), Cr.PC is not a mere-nominal list, filed just for securing issue of summons or warrant against the

accused, but is. a bona fide list of witnesses so far known to the complainant and considered by him then as necessary for supporting the case he

has set out in his complaint.

It is, therefore, clear that the list filed u/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 complainant u/s 204 (1), Cr.PC,

or in addition only to such of the witnesses in the primary list whom he decides to examine.

The second question is also easy to answer. As the learned Public Prosecutor contended, no complainant can be compelled to examine all the

witnesses cited in his list filed u/s 204 (1) and it must be left to the complainant to dispense with the evidence of these gained over or unnecessary

and to examine only the rest. It often happens that some of the witnesses whom the complainant lies-cited in the list filed u/s 204 (1-A) may turn

hostile, or some of them may be found on later reflection, to be unnecessary, so the complainant can dispense with these and examine the rest in

support of the prosecution. He may thus give up some or all of the witnesses in the original list. Of course, the Court will advert to his giving up the

witnesses mentioned in the original list, and draw an inference against him if such giving up has been, in its opinion, mala fide.

The third question can also be answered easily. When the Megistrate is asked to summon fresh witnesses, he must certainly apply his mind to

the application, and has a duty to do so. For one thing he must weed out obviously frivolous names. Thus, if the complainant frivolously summons

the Prime Minister of India or the President of the Indian Republic, or the accused''s wife, as supplemental witnesses the Magistrate may refuse to

summon them.

It is not a case where the Magistrate has no right at all to apply his mind, as contended for by the learned Counsel for the complainant or where the

Magistrate has no right to summon any additional witness, even after applying his mind, as contended by the learned Counsel for the accused.

Before the Court applies its mind about summoning the witnesses named in the additional list filed, no notice of the list of the additional witnesses

need go to the accused (and the accused heard about it) any more than in the case of the list originally filed u/s 204 (1), Cr. T. C.

It follows from all this that the order of the Special Honorary Presidency Magistrate, Ignore, Madras, holding that he had no power to examine

any witness other than those named by the complainant in the list filed u/s 204 (1), Cr.PC and, therefore, declining to examine any of the additional

witnesses named in the supplemental list and already summoned by him, is not correct. Of course, the credibility, or weight, of the evidence of the

witnesses named in the supplemental list and examined is a different matter.

As held by the Calcutta High Court in Ali Jan Vs. Amir Khan, , the credibility of the evidence of the witness examined before a Magistrate is quite

different from the Court''s power to examine him. The question of credibility of the witnesses will arise not only with reference to the additional

witnesses in the supplemental list, but also with reference to the primary witnesses in the original list filed u/s 204 (1), Cr.PC though, of course,

there will be a greater inclination on the part of the Court to test the evidence of supplemental witnesses more severely, as they were not included

in the original list.

The Special Honorary Magistrate will proceed to examine the additional witnesses summoned by him, and dispose of the case according to law

in due course.