S. Balwant Singh vs S. Harbhajan Singh

Mian Jalaluddin, J.—This revision is directed against the order dated 1-2-1976 of the learned City Magistrate, Srinagar allowing the

application of the complainant respondent for summoning an additional witness in the case.

A complaint u/s 500 R.P. C has been filed by the complainant respondent against the petitioner in the court of City Magistrate, Srinagar, The

complainant examined his witnesses and the accused was thereafter charge sheeted. Some prosecution witnesses were recalled for the purpose of

re-cross-examination u/s 258. At the stage when the complainant was to be cross-examined, he moved an application praying for summoning an

additional witness namely one Badri Nath Booking Clerk of M/s. Broca's Press. This application was resisted on behalf of the accused petitioner

on the ground that it could not be entertained at that stage of the proceedings. According to him Section 256 Cr.P.C. did not confer this right on

the complainant and did not empower the court to summon an additional witness. This argument was repelled by the learned trial Magistrate who

allowed the application and ordered that the statement of Shri Badri Nath would be recorded on the next date of hearing after cross-examination

of the complainant was over. Aggrieved by this order the accused has come up in revision before this Court.

Appearing for the petitioner Mr. M..L, Qureshi has vigorously contended that neither Section 252 nor 256 Cr.P.C. conferred any right on the

complainant to produce any additional evidence after the statements of his listed witnesses were recorded u/s 252 and the list stood exhausted. He

has elaborated the argument by submitting that in the instant case all the witnesses given in the list were examined by the Court before the charge

sheet was framed. No witness remained to be examined. Therefore, no fresh evidence could thereafter be called by the complainant at the stage of

Section 256 Cr.P.C. The Code did not empower the Court at the stage of Section 256 Cr.P.C. to examine additional witnesses. This argument is

founded on the assumption that after the Magistrate examined all the witnesses in the list at the stage of Section 252 there were left no remaining

witnesses in the case to be examined. Section 256 enabled the Magistrate to examine the remaining witnesses left in the list. As the list stood

exhausted so no remaining witness was left over that could be called and examined at the stage of Section 258. In support of the contention that

the expression 'remaining witnesses' occurring in Section 256 has got reference only to the listed witnesses who were not examined by the Court at

the stage of Section 252 Cr.P.C. and that the expression does not apply to fresh witnesses outside the list, reliance is placed on a full Bench

authority of Lahore High Court reported in AIR 1945 Lah 201 : 47 Cri LJ 143 (FB). It is, therefore, submitted that the order of the Court below

suffers from this legal infirmity and the same is not sustainable in the eye of law.

According to Mr. S.L. Koul the learned Counsel for the respondent the construction sought to be placed by Mr. Qureshi on the expression

'remaining witnesses' in Section 256 is not warranted, as there can be no authority for the proposition that the power of the court to summon

additional witnesses is fettered or circumscribed by the provisions of Section 256. That Section gives unfettered right to the accused and the court

is vested with power to summon any remaining witnesses whom the prosecution wants to produce. The expression ""remaining witnesses"" it is

submitted, should not be construed to mean only those witnesses who are in the list filed along with the complaint but also it means those witnesses

who are not included in the list but whom the complainant wants to examine at the stage of Section 256. In support of the view enunciated he has

relied upon Rewa Chand Vs. The State, ; M. Gangama Naidu Vs. Siddaiah Naidu and Another, .

I have examined the matter carefully. At one stage of the case I was of the opinion that I should refer the question of law posed before me to a

larger Bench, but on a closer examination of the provisions of Section 256 and also the case law on the subject, I do not think it necessary so to

do, The consensus of opinion among the Indian High Courts is in favour of adopting the view that the expression ""remaining witnesses"" in Section

Cr.P.C. is not limited to those witnesses) referred to in Section 252 and is wide enough to include any witnesses who according to the

prosecution are able to support its case though they have not been summoned. The prosecution is at liberty to examine its witnesses even after

framing of the charge. Non-mention of the witnesses in the list u/s 252 does not operate as a bar. In my opinion considering the language of

Section 252 the real ambit and scope of that section calling upon the prosecution to file the list of witnesses is that the court is given an opportunity

to know the witnesses sought to be examined by the prosecution, and the accused is also apprised of the matter so that : no surprise can be sprung

upon him. This facilitates the work of the Court as well as that of the prosecution. This section does not intend to limit the number of the witnesses

to be examined by the prosecution. A distinction is to be drawn between the state of law that obtained before the amendment of the Code and

after its amendment. AIR 1945 Lah 201 : 47 Cri LJ 143 FB relied upon by the petitioner has interpreted the old provisions of Section 252 of the

Code. Under that section the magistrate had to ascertain the names of all the persons who may be able to give evidence for the prosecution, but

under the amended Code no such duty is cast upon the magistrate, He has not to ascertain the names of the witnesses. Moreover the Lahore

authority was a case where the prosecution had closed its evidence at the stage of Section 252 by making a formal statement. Their Lordships on

an examination of the prosecution case came to the conclusion that in the circumstances there were no remaining witnesses left after the

prosecution had closed its evidence. In the instant case we find that no such statement of the complainant closing the evidence was recorded by the

court. If the complainant had made such a statement the Court was justified in treating his evidence as closed and in that view of the matter the

complainant might not be said to possess any right to examine any remaining witnesses because there could be no remaining witnesses in that

situation. Therefore, in that view of the matter as also in view of the preponderance of the authorities in favour of the principle enunciated above, I

hold that the list of the witnesses furnished at the stage of Section 252 will not disentitle the prosecution to make an application for producing

additional evidence and the court will not be powerless. The words ""remaining witnesses"" have got no reference to those witnesses only who are in

the list but they also include witness outside the list

For the foregoing reasons the order passed by the Court below is not improper or illegal. There is therefore, no reason to interfere with the

order under revision. There is no force in the revision petition which is hereby dismissed. Parties are directed to appear before the trial Court on

September 21, 1976 for further proceedings.