Shafi vs Amir Chand

J.N. Wazir, C.J.—This is a reference made by the Sessions Judge of Udhampur, recommending that the order of the Additional District

Magistrate, Udhampur, dated 29-9-1965 summoning the witness named by the prosecution in its application dated 15-5-1965 u/s 540, Code of

Criminal Procedure is erroneous and should be set aside.

The facts which gave rise to this reference, briefly stated, are these:

A complaint was flied by one Amir Chand under Sections 498 and 109 R.P.C. against Bhakar Ali and others in the Court of Additional District

Magistrate, Udhampur. The complainant examined some witnesses in support of his complaint and closed his evidence on 16.4.1965. An

application was made on 15.5.1965 by the complainant that an important witness by the name of Able who was acquainted with the facts of the

case has not been examined and it was prayed that he may be summoned and his statement be recorded. It was further stated in the application

that in case his request for the Production of the witness is not granted the Court should exercise its discretion u/s 540, Code of Criminal

Procedure and call the witness as a Court witness. The Magistrate did not accede to the request of the complainant and rejected his application

but he exercised jurisdiction u/s 540, Code of Criminal Procedure and called Able as a Court witness.

A revision application was filed against that order before the learned Sessions Judge who relying on In Re: K.V.R.S. Mani, held that the discretion

exercised by the Magistrate amounted to allowing the prosecution to fill up lacuna left by it. With these remarks recommendation was made for the

reversal of the order made by the Additional District Magistrate summoning, Able as a Court witness. In In Re: K.V.R.S. Mani, it is laid down that

the discretion is given under the Section is very wide and the very width requires a corresponding caution in using the power given to a Court under

that section. Reliance was further placed upon a ruling of this Court in Kashmira Singh v. State 1965 3 K LJ 267 : AIR 1965 J&K 37 in which it

was held:

The powers of Court either for ordering retrial or for taking additional evidence are not meant to be exercised in order to enable the prosecution to

fill up lacunae in the case. The result of accepting such a prayer would be to punish the accused for a fault which was not committed by him but by

the prosecution. These two rulings have no application to the present case. In the instant case the complainant had examined certain witnesses in

support of his complaint and had closed his evidence. On the next day of hearing the complainant found that a witness who was acquainted with

the facts of the case was left out and made an application that his statement be recorded. u/s 252, Code of Criminal Procedure the Magistrate is

bound to ascertain from the complainant the names of any persons likely to be acquainted with the facts of the case and he may summon to give

evidence before him such of them as he thinks necessary. Section 252, Code of Criminal Procedure reads as under:

252(1) In any case instituted otherwise than on a police report, when the accused appears or is brought before a Magistrate, such Magistrate shall

proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution:

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(2) The Magistrate shall ascertain from the complainant or otherwise, the names of any persons likely to be acquainted with the facts of, the case

and to be able to give evidence for the prosecution, and shall summon to give evidence before himself such of them as he thinks necessary.

Under Sub-Section (2) of Section 252, Code of Criminal Procedure it is the discretion of the Magistrate to choose any of the witnesses to give

evidence before him as are named by the complainant to he acquainted with the facts of the case. The complainant brought to the notice of the

magistrate that there is another witness by the name of Able who is acquainted with the facts of the case and his statement be recorded. The

Magistrate was bound to take down his statement u/s 252(2), Code of Criminal Procedure if he was satisfied that the witness was likely to be

acquainted with the facts of the case Summoning the witness as a Court witness showed that he was satisfied that, the statement of the witness was

likely to support the comp1aint. The learned Magistrate was not right in summoning Able as a Court witness, especially when the complainant had

made an application that Able was an important witness and was acquainted with the facts of the case. The power given to the magistrate u/s

252(2), Code of Criminal Procedure may be exercised from time to time as the occasion requires. The Magistrate, therefore, should have

summoned the witness not u/s 540 but u/s 255(2), Code of Criminal Procedure in AIR 1940 390 (Nagpur) it was held:

The power given to the Magistrate u/s 252(2) may be exercised from time to time as the occasion requires.

In State of Mysore v. Babasaheb Syadsaheb AIR 1959 Mys 238 it was observed:

An order passed by the Magistrate rejecting, an application by the complainant for summoning additional witness on the ground that the

complainant was not entitled to summon and examine any witness that he had not cited in his complaint or included in the list filed by him u/s

252(2), where the accused had not been called upon to enter their deface is il1egal. The words 'any remaining witnesses' in Section 252(1) also

cover the witnesses, who had not been cited by the complainant in his complaint petition. The words are wide enough to include any witness who

according to the complainant is able to give evidence in support of his case. In K.C. Menon Vs. P. Krishna Nayar, it is laid down:

Section 252 of the Code means first that the complainant should himself produce what evidence he can in support of the prosecution and the

Magistrate shall proceed to hear it. The Court is apparently not bound to issue process for such witnesses, or to grant time for the production of

such witnesses, but if produced he must record their evidence.

Next when the complainant has done all he can without the assistance of the process of the Court it is then for the Magistrate to ascertain from the

complainant or otherwise the names of other persons likely or able to give evidence, and he must summon such of these as he thinks necessary,

i.e., such of those us he thinks will be of value in assisting the prosecution case. He cannot arbitrarily refuse to summon such witnesses. It is his duty

to assist and not to hamper the prosecution and for that purpose he must issue summons to persons of whom complainant has informed him, who

he considers are likely to give useful evidence.

The learned Sessions Judge has relied upon the rulings u/s 540, Code of Criminal Procedure in which it is laid down that the Magistrate should not

exercise discretion given u/s 540, Code of Criminal Procedure and summon evidence at any stage of the proceedings in order to make up the

deficiency left in the prosecution case. There can he no quarrel with this proposition. Here the complainant examined a few witnesses and made an

application that there is another witness who is likely to be acquainted with the fact of the case and his statement will be of some assistance to him.

The Magistrate being satisfied that it was necessary to record the statement of the witness called him as a Court witness u/s 540, Code of Criminal

Procedure. It was not necessary for the magistrate to exercise his discretion u/s 540 Code of Criminal Procedure at this stage. He should called

the witness u/s 252(2), Code of Criminal Procedure if he was satisfied that it was necessary to record his statement. I therefore, reject the

reference made by the Sessions Judge and modify the order of the trial Magistrate to this extent that the witness be examined not as a Court

witness but his statement be recorded u/s 252(2), Code of Criminal Procedure. as an additional witness produced by the complainant in support of

the allegations in the complaint.