C. Jagannadhacharyulu, J.C.
1. This is a reference made by the Sessions Judge, Manipur, under Section 438, Criminal P.C. to set aside the order of the First Class Magistrate, Manipur, dated 1.1.1966, passed by him in Criminal Case No. 130 of 1965 refusing to examine three witnesses, who were cited by the deceased complainant in the complaint petition filed by him and to examine another witness, who is the brother of the deceased complainant.
2. One Ngounipu Kabui filed a criminal case on the file of the First Class Magistrate, Manipur, against the respondents under Sections 447, 427 and 143, I.P.C., on 18.1.1965 alleging that the respondents committed offences of criminal trespass on the land in his actual possession and criminal mischief by dismantling his shed and fencing and by destroying vegetables grown by him. He cited seven witnesses including himself in the complaint petition. He died during the pendency of the criminal case and his widow (the petitioner herein) continued the proceedings. The Magistrate examined three witnesses out of the list and the petitioner. On the ground that the prosecution closed the evidence on 1.10.1965 the Magistrate heard arguments and framed charges against the respondents on 21.10.1965. The respondents pleaded not guilty to the charges. They wanted to cross-examine all the four prosecution, witnesses, who were previously examined before the charges were framed.
Accordingly, the Magistrate recalled all the four prosecution witnesses and allowed the respondents to further cross-examine them. Thereupon, the petitioner filed an application on 3.11.1965 under Section 540, Criminal P.C. to permit her to examine her brother-in-law (whose name was not mentioned in the complaint petition) and to direct him to produce the relevant documents regarding the deceased's title to and possession of the disputed land. She filed another application on 23.11.1965 under Section 256(1), Criminal P.C. to permit her to examine the three remaining witnesses whose names were mentioned in the complaint petition and who were not examined before the charges had been framed. But, the Magistrate rejected both the applications by his order dated 1.1.1966.
3. The petitioner moved the Sessions Court in Criminal Revision Case No. 12 of 1965 under Section 437, Cr.P.C., to make a reference to this Court to set aside the order of the Magistrate in question. The learned Sessions Judge was of the opinion that the Magistrate should have examined the remaining witnesses (who were cited in the complaint petition and not examined before the charges were framed) under Section 256(1), Cr.P.C. He was also of the opinion that the Magistrate should have examined the petitioner's brother-in-law under Section 540, Cr.P.C., (though he was not cited as witness in the complaint petition) for the just decision of the case. So ho made the reference to this Court.
4. With regard to the first aspect of the case that the Magistrate should have examined the remaining three witnesses under Section 356(1), Cr.P.C., at the request of the petitioner, the contention of the petitioner's counsel is that the Magistrate went wrong in rejecting the petition of the petitioner. The Magistrate states in his order that the remaining witnesses (mentioned in the complaint petition and who were not examined) could not be examined, because the prosecution closed its evidence once for all, that there is no provision in the Criminal Procedure Code, which enables the prosecution to reopen its side and that though the petitioner's counsel relied on a number of rulings in support of his contentions that they can be examined, still the rulings have, no bearing on the point urged by him. The Magistrate did not mention the rulings at all in his order. To say the least, his order is perverse.
5. The case is one triable as a warrant case under Chap. XXI of the Criminal Procedure Code. As the case was filed by a private party and not by the police, the procedure laid down by Section 252, Criminal P.C., is applicable. It runs as follows:
252. Evidence for prosecution.-(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 complaint, if any, and take all such evidence as may be produced in support of the prosecution:
Provided that the Magistrate shall not be bound to hear any person as complainant in any case in which the complaint has been made by a Court.
(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.
Thus, it is the duty of the Magistrate under Section 252(2), Cr.P.C., to ascertain from the complainant or otherwise the names of persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution. He should summon such of them as he thinks necessary.
6. Under Section 253, Cr.P.C., the Magistrate shall discharge the accused, if, upon taking all the evidence referred to in Section 252, Cr.P.C., and on making such examination, if any, of the accused as he thinks necessary, he finds that no case against the accused has been made out, which, if unrequited, would warrant his conviction. He can also discharge the accused even at an earlier stage of the case, if, for reasons to be recorded by him, he considers the charge to be groundless.
7. But, if the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under Chapter XXI of the Criminal Procedure Code, which he is competent to try, after such evidence and examination have been taken and made under Section 252, Cr.P.C., he should frame in writing a charge against the accused. Section 254, Cr.P.C., empowers him to frame the charge even at any previous stage of the ease, ii he is of such opinion. Under Section 255, Cr.P.C., the charge shall be read and explained to the accused and he shall be asked whether he is guilty or has any defence to make. If the accused pleads guilty, the Magistrate should record his plea and he may convict him thereon in his discretion.
Section 255-A, Cr.P.C., lays down the procedure to be adopted in the case of previous convictions. Then follows Section 256, Cr.P.C. As the case depends upon the interpretation of the words 'any remaining witness', it will be useful to extract the section. It runs as follows:
256. Defence.-(1) If the accused refuses to plead, or does not plead, or claims to be tried, he shall be required to state (at the commencement of the next hearing of the case, or, if the Magistrate, for reasons to be recorded in writing, so thinks fit, forthwith), whether he wishes to cross-examine any, and, if so, which of the witnesses for the prosecution whose evidence has been taken. If he says he does so wish, the witnesses named by him shall be recalled and, after cross-examination and re-examination (if any), they shall be discharged. The evidence of any remaining witnesses for the prosecution shall next be taken, and after cross-examination and re-examination (if any), they also shall be discharged. The accused shall then be called upon to enter upon his defence and produce his evidence.
(2) If the accused puts in any written statement, the Magistrate shall file it with, the record.
Thus, under Section 256(1), Cr.P.C., the evidence of 'any remaining witnesses' for the prosecution shall next be taken after the witnesses, who were previously examined before the framing of the charges are cross-examined and re-examined, if any. So, it is the duty of the Magistrate to examine 'the remaining witnesses'. There is general consensus of opinion among the major number of High Courts that this expression 'any remaining witnesses' relates to the witnesses mentioned in the complaint petition, who were not examined before the framing of the charges.
The Nagpur High Court held in Abdul Razake v. Haji Hussain Server AIR 1945 Nag 286, that where all the witnesses cited in the list have not been examined and although the complainant has announced the closure of his case after some of the listed witnesses were examined, it is open to him to have the remaining witnesses also examined and to the Magistrate to accede to the application. But, it was further held that, in respect of the new witnesses not mentioned in the list, they cannot be allowed to be examined, as they cannot be said to be 'remaining witnesses' under Section 256 (1), Cr.P.C.
The Orissa High Court held in Hadibandhu Misra v. King : AIR1950Ori245 , that the expression 'any remaining witnesses' in Section 256(1), Cr.P.C., includes those who had not been examined but who could be examined under Section 252, Cr.P.C., as per the list of witnesses or whose names had not been disclosed before the charge was framed. The Rajasthan High Court held the same view in Rewa Chand v. State AIR 1955 Raj 113. It was further held that the words 'any remaining witnesses' are wide enough to include any witness, who, according to the prosecution, is able to support its case, though he has not been summoned, provided that he is not sprung upon the defence all of a sudden and sufficient opportunity is given to the latter to prepare for the cross-examination of the witnesses.
The earlier decision of the same High Court in Premraj v. State , which held the contrary view was overruled. The Mysore High Court is also of the same opinion. Vide State of Mysore v. Babasaheb Syadsaheb Shetsanadi AIR 1959 Mys. 238. The Jammu and Kashmir High Court is also of the same view. Vide Asadullah Patwari v. State AIR 1960 J and K 44. The High Court of Andhra Pradesh also held the same view. Vide Gangama Naidu v. Siddaih Naidu AIR 1962 Andh Pra 11.
8. The learned Counsel for the respondents contended that as the prosecution closed its evidence on 1-10-1965 and as the Magistrate framed charges against the respondents, the petitioner was estopped from examining the remaining witnesses who were mentioned in the list and who were not examined before the charges were framed. They relied on Raghubir Sahai v. Wali Husain Khan AIR 1937 All 189. It was held that under Section 254, Cr.P.C., the Magistrate may examine all the witnesses mentioned in the list under Section 252(2), Cr.P.C., and frame a charge or that he may frame a charge before he has examined all those witnesses, that if he adopts the latter course, then the witnesses who remained and who were not examined are 'any remaining witnesses' under Section 256(1), Cr.P.C., and that the complainant has right to produce them, after the cross-examination of those witnesses, who had been previously examined, is over.
It was further held that, on the other hand, the Magistrate has examined all the witnesses for the prosecution as per the list under Section 252(2) Cr.P.C. and framed the charge, then there are no witnesses remaining, who can come under description in Section 256(1) Cr.P.C. The respondents also relied on Emperor v. Nagindas Narottamdas Gandhi AIR 1942 Bom 214. That decision lays down that Section 256 Cr.P.C. enables the prosecution to examine witnesses, who have not been examined and whose names have not been disclosed before the charge was framed.
In AIR 1952 Raj 55 (relied on by the respondents counsel) the decision reported in AIR 1937 All 189, was followed. But, this decision of the Rajasthan High Court was subsequently overruled by the same High Court in AIR 1955 Raj 113, already referred to. Even these decisions do not preclude the prosecution from examining the 3 witnesses mentioned in the complaint petition, who were not examined before the charges were framed.
9. Another contention of the learned Counsel for the respondents is that, if the 8 witnesses are now allowed to be examined, the respondents will be prejudiced in their defence, since they did not cross-examine the other witnesses, who were already examined, with reference to the witnesses, who are now to be examined and that, therefore, the respondents will be prejudiced. This argument was met in AIR 1950 Orissa 245, wherein it was held that the prejudice can be early avoided by directing the Magistrate to give the respondents every facility to recall the prosecution witnesses, who had already been examined, for further cross-examination.
Thus, the provisions of Section 256 (1) Cr.P.C. are mandatory. The view of the various High Courts viz., Nagpur, Orissa, Rajasthan, Mysore, Jammu and Kashmir and Andhra Pradesh is also the same. There is no question of estoppel in a criminal case and the prosecution is not estopped from examining the three remaining witnesses. So, the. Magistrate is bound to examine the 3 witnesses mentioned in the list, who had not been previously examined.
10. Regarding the new witness, whose name was not mentioned in the complaint petition (and could not be), the contention of the petitioner's counsel is that the necessity for the examination arose on account of the death of the complainant. It was said by the petitioner's counsel that the documents evidencing the deceased's title to and possession of the land in dispute are now with the brother of the deceased and that they are required for the just decision of the case. He too can be examined under Section 256(1) Cr.P.C. according to the view of the High Courts of Orissa, Rajasthan, Mysore, Jammu and Kashmir and Andhra Pradesh mentioned above, even though his name was not mentioned in the complaint petition, provided his evidence is material.
Even otherwise, he can be examined under Section 540 Cr.P.C. also. Section 540 Cr.P.C. gives ample power to the Court to examine any witness, at any stage of any enquiry, trial or other proceedings under the Criminal Procedure Code, provided his evidence appears to the Court essential to the just decision of the case. Vide also Syed Mohammed v. K.C. Raman 1964 (1) Cri LJ 100 (Ker). The Kerala High Court held that the prosecution is not estopped from examining any witness, who had been previously given up, before it closes its case and the Court can also examine such a witness as the Court witness under Section 540 Cr.P.C.
In Shreelal Kajaria v. State : AIR1964Bom165 , it was held that Section 540 Cr.P.C. is in the widest possible terms, and calls for no limitation either with regard to the stage at which the powers of the Court should be exercised or with regard to the manner in which they should be exercised. It was held that a witness can be examined under that section even after the case for the defence had been closed. Vide also Public Prosecutor v. M. Sambangi Mudaliar : AIR1965Mad31 , which is to' the same effect. So, the new witness can be examined under Section 540 Cr.P.C. if his evidence is necessary for a just decision of the case. As such he can be examined both under Section 256(1) Cr.P.C. as well as under Section 540 Cr.P.C.
11. The contention of the learned Counsel for the respondents with regard to the examination of the new witness is twofold. Firstly, they urged that Sub-section (1-A) of Section 204 Cr.P.C. was introduced by the Criminal Procedure Code Amendment Act (Act 26 of 1955) that no summons or warrant shall be issued against the accused under Sub-section (1) of Section 204 Cr.P.C. until the list of the prosecution witnesses has been filed, that the above decisions did not notice this provision of law and that as warrants were already issued after the magistrate took cognizance of the case, the new witness cannot be examined under Section 256(1) Cr.P.C. Their contention has no force.
Sections 204 and 205 Cr.P.C. are the two sections in Chapter 17 Cr.P.C. Section 204 Cr.P.C. lays down inter alia that the magistrate should issue summonses or warrants after taking cognizance of the offence and after he thinks that there is sufficient ground for proceeding. The list of the prosecution witnesses is insisted to be filed before the issue of summonses or warrants to enable the accused to know the allegations against him and also who are the witnesses who are likely to give evidence against him. But the prosecution is not pinned down to that list. Otherwise, Sections 244 and 252 Cr.P.C., which direct the Magistrate to take all such evidence which may be produced by the prosecution either in a summons case or a warrant case would have no effect. Vide also Syama Charan Saha v. Nagendra Nath Bakshit 61 Cal WN 192 and All Jan v. Amir Khan : AIR1957Cal332 . But, it is quite a different matter regarding the credibility of such a witness.
12. The second contention of the learned Counsel for the respondents is that though the petitioner was examined, she did not disclose what documents are with her brother-in-law, that there is no evidence to show what bearing the documents have on the case, that the discretion which is to be exercised under Section 540 Cr.P.C., is a judicial discretion and that, therefore, the new witness cannot be examined by the Court in exercise of its powers under that section. The Magistrate states in his order that the nature of the documents was not disclosed. But, as rightly pointed out by the learned Sessions Judge, the documents are said to be with the brother of the deceased. It was stated that they relate to the title to and possession of the disputed land of the deceased. So, it is not proper to insist that the petitioner should state in detail the contents of the documents. It is, therefore, necessary for the just decision or the case that the new witness should be directed to produce the documents into the Court and be examined. The order of the Sessions Judge is correct.
13. In the result, the reference is accepted.