Shyama Charan Saha vs Nagendra Nath Rakshit

D. Mookerjee, J.—This is a petition for revision of an order made by a Presidency Magistrate on November 2, 1956, by which he refused the Petitioner''s application for examination of some persons, who were not included in the list of witnesses already supplied. The Petitioner instituted a complaint in court charging the opposite parties with having committed various offences under Sections 420, 409, 424 and 120B of the Indian Penal Code. The allegations in the petition of complaint do not fall to be mentioned in the present context.

The complaint was sent to the police for enquiry and report. On August 27, 1956, the police after holding an enquiry submitted a report and the learned Magistrate directed processes to issue for the attendance of the accused opposite parties. It is said that the Complainant-Petitioner having come to know that the police enquiry had revealed the existence of other very material witnesses to the case, made an application before the Magistrate setting out their names as being those of persons privy to the transaction which formed the subject-matter of the complaint and prayed that those witnesses be summoned for examination in the case. The learned Chief Presidency Magistrate before whom this application had been made, merely directed that the application be filed with the record of the case. Thereafter, when the case was transferred to the trying Magistrate, the prayer for examination of additional witnesses whose names had transpired in the police, enquiry was renewed, but ultimately the trying Magistrate thought that there was no substance in the prayer and accordingly rejected it. This was done by an order, dated November 2, 1956, against which the present Rule is directed.

On November 2, 1956, which was the first date of effective hearing of the case, only one witness was examined-in-chief and when another who had presumably been named in the application referred to above, was offered for examination, the learned Magistrate did not allow the witness to give evidence on the ground that he had not been named as one of the witnesses by the complainant before the issue of processes for compelling the attendance of the accused persons u/s 204 of the Code of Criminal Procedure.

It is reasonably clear that the Petitioner''s application for the issue of processes for attendance of persons whose knowledge of the subject-matter of the complaint had been revealed by the subsequent police enquiry had been made even before the examination of witnesses had commenced. It cannot, in that sense, be said to be a belated application. The only question, therefore, is whether the learned Magistrate is right in thinking that since summonses had already been issued for the attendance of the accused in accordance with the provisions of Section 204(1A), it was no longer open to the complainant-Petitioner to ask for examination of any witness whose name had not been included in the list of witnesses already filed.

Section 204(1) of the Code of Criminal Procedure provides that if there is sufficient ground for proceeding in a case, the Magistrate will issue his summons or warrant, as the case may be. Sub-section (1A) of Section 204 provides 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". Sub-section (1B) says that "in a proceeding instituted upon a "complaint made in writing, every summons or warrant issued "under Sub-section (1) shall be accompanied by a copy of such "complaint". These provisions, according to the learned Magistrate, are mandatory and they must be complied with strictly in terms. The argument seems to be that since a summons for the accused had already been directed to issue, the application of the Petitioner for the issue of summons for the attendance of new witnesses was not entertainable inasmuch as there was already a list of prosecution witnesses filed and upon which the court had acted in accordance with Sub-section (1A) of Section 204. It was also argued that in view of the provisions of Sub-section (1B), every summons or warrant has to be accompanied by a copy of the complaint which evidently must include a list of witnesses to be examined in the case. It is, therefore, contended that in view of these provisions, once a summons or warrant on the accused has been directed to issue, it is no longer open to the complainant to ask for examination of witnesses whose names are not included in the list mentioned in Section 204(1A) of the Code. It is said that Sub-section (1B) is a guarantee against subornation of evidence inasmuch as the copy of the complaint together with a list of witnesses already filed would preclude the complainant from producing persons as witnesses in the case who are not, in fact, privy to it.

Section 204(1) seems to me to imply that once the Magistrate taking cognizance is satisfied that there is sufficient ground for proceeding, he will issue his summons or warrant, as the case may be for the appearance of the accused. The Code provides that no such summons or warrant shall issue against the accused unless a list of the prosecution witnesses has been filed. That indeed gives the person accused an indication of the witnesses against him just as the provisions contained in Sub-section (1B) are calculated to give him an idea of the allegations that have been made against him. The only question that requires consideration is whether these provisions preclude the complainant from putting fresh evidence before the court. It is urged on behalf of the opposite parties that the provisions contained in Section 204 are absolute and that being so, they can, in no case, be relaxed so as to permit the complainant, in any circumstance, to produce evidence, however useful or illuminating in relation to the charge brought against the accused. I am, afraid, I cannot accept this extreme contention. The real purport of these provisions appears to me to be to give the accused man a fair idea of the allegations that are made against him as also of the persons who are likely to support those allegations. Nothing more was intended by the legislature than this. If the complainant was to be tied inexorably to the list of witnesses mentioned in Section 204(1A), then that would, in my view, have the effect of abolishing Section 252(2) of the Code of Criminal Procedure. Section 252 provides that in a case instituted otherwise than on police report, it is the duty of the Magistrate to proceed to hear the complainant and take all such evidence as may be produced in support of the prosecution case. Sub-section (2) of that section specifically provides that the Magistrate will then ascertain from the complainant 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. This Sub-section means that it is the duty of the Magistrate to ascertain from the complainant the names of persons who are likely to throw light on the matter under enquiry and if he is satisfied that there is any such person available, it shall be the duty of the Magistrate to summon such witness and allow him to give evidence. Referring back once again to Section 204, it is quite clear that if Sub-sections (1A) and (1B) were to be held absolute, then the discretion which the legislature has given to the Magistrate in Section 252(5) would be utterly empty. If the complaint containing the list of witnesses was to be considered a final document in the sense that no new witnesses could be called, then, I am afraid, Sub-section (2) of Section 252 of the Code becomes altogether void of content. There will be no occasion whatever for the Magistrate to ask the complainant, if any person was likely to be able to give evidence in the case; and it would be nothing more than a mere useless formality, if after ascertaining from the complainant and coming to know that there was evidence available, the Magistrate was still to be considered left without power to summon and examine such witnesses before him.

The only conclusion, therefore, that can reasonably be arrived at is that Section 204 requires the complaint to supply a list of witnesses and to furnish a copy of the complaint so that the accused may at the earliest possible moment be apprised of the allegations against him and in order that he might know who the witnesses are, whose evidence will furnish proof of the charge. That is all the purpose which Section 204 is intended to serve. The Magistrate''s discretion u/s 252(5) remains unfettered and indeed it is his duty while trying a case on complaint to ascertain the names of witnesses who are likely to be able to give useful evidence and to summon them, so that their evidence may be heard. In other words, Section 204 does not control Section 252 which, in my view, must receive full play.

The result, therefore, is that this rule is made absolute and the order of the learned Magistrate, dated November 2, 1956, is set aside and the learned Magistrate is directed to consider afresh the application of the Petitioner, dated August 28, 1956 and dispose, it of in accordance with law and in the light of the observations made.