Queen-Empress vs Shakir Ali and Others

John Edge, Kt., C.J. and Blair, J.—This is an application to transfer a case pending in a Court of Session to another Court of Session on the ground that the Sessions Judge declined to summon certain witnesses for the accused. It appears that these applicants were asked in the Magistrate''s Court if they had any witnesses to call. They stated that they reserved their case for the Court of Session and would not file any list of witnesses. Later on, and after commitment, they applied to the Magistrate to summon certain witnesses for the defence. The Magistrate declined on the ground that he was not bound to do so under the Code of Criminal Procedure. Application was then made to the Sessions Judge to have these witnesses summoned. He also declined. It has been contended that this Court, in the case of Queen-Empress v. Har Gobind Singh I.L.E. 14 All. 242, decided that where an accused person has declined to file a list of witnesses during the inquiry before the Magistrate he is entitled after committal to have the Magistrate summon any witnesses he may name, and, if an application to be made to the Judge before trial, at the trial he is equally entitled to have any witness whom he names summoned. This Court decided nothing of the kind in Queen-Empress v. Har Gobind Singh ILR 14 All. 242. The Court was dealing there with what had actually taken place. We were referring to certain comments made on the procedure of the Magistrate. It appears to us that if an accused person, on being called upon u/s 211 of the Code of Criminal Procedure to give orally or in writing a list of the persons whom he wishes to be summoned to give evidence on his trial, declines to give in such list, he cannot compel the Magistrate after committal to issue any summonses for witnesses on his behalf. He is of course entitled to call any witnesses in the Court of Session whom he may have in Court, whether or not he has caused such witnesses to be summoned. The Sessions Judge may in his discretion cause any witness to be summoned for the accused on an application made during the trial, and he is bound to procure the attendance of such witnesses, if he considers that their evidence may be material. It may be dangerous in some districts for the accused to run the risk of having his witnesses tampered with. It may thus be wise in some cases for the accused to decline to give a list to the Magistrate, and to reserve his evidence for the Court of Session. In order to entitle him to have his witnesses summoned, he must satisfy the Judge of the probability that such witnesses would be material. We have no doubt in the present case that if these accused do give to the Sessions Judge any reasons for concluding that the witnesses whom they ask to have summoned can give material evidence, the Sessions Judge will take the necessary steps to procure their attendance. We decline to interfere further in this case. The Sessions Judge will act on this application if any case is made out before him, showing that it is a reasonable application and not merely one for delay.

We dismiss this application.