Rajvi Roop Singh, J.C.
1. This is a reference made under Section 438 Cr, P.C. by the learned Sessions Judge, Tripura, in Criminal Application No. 14 of 1964, of his file for orders of this Court.
2. The circumstances that led to the reference briefly narrated are as follows:
On 22-12-62, Janaki Nath Chakraborty, the petitioner, filed in the Court of Magistrate First Class, Belonia a petition of complaint under Sections 379 and 147 I.P.C. against the opposite parties and 113 other persons with the allegation that they in a body illegally reaped away ripe paddy from 2 kanis 10 gandas of land lying to the north-eastern portion of 9 kanis of land, appertaining to jote No, 32 of Mouza Paschim Pillak in spite of protest by him. As a result of reaping away his paddy he sustained a loss to the tune of Rs. 400/-. Along with this petition of complaint he filed a list of 12 witnesses mentioning therein that they were the eye-witnesses to the occurrence. After initial examination of the complainant the learned Magistrate took cognizance of the offence under Section 379 I.P.C, and ordered issue of summons on the 3 accused opposite parties. On 25-2-63 the members of the opposite party appeared and the learned Magistrate released them on bail and ordered for the issue of summons on witnesses. Thereafter, the case was adjourned on several days without examination of the P.Ws. though on most of the occasions the complainant was present with several witnesses. Thereafter on 6-12-63, 5 P.Ws. including the complainant were present, but 2 accused persons were absent, therefore, the case was adjourned for 3-1-64. On 3-1-64 5 P.Ws. were present and out of them the complainant and 3 others were examined. The other two witnesses of the complainant namely, Purna Baidya and Ram Kumar Paul were also present, but the complainant did not examine them on the ground that Purna Baidva has joined the otier party and Ram Kumar Paul is a relation of the accused, therefore, they would not depose the correct facts. After the examination of the witnesses the complainant filed a petition praying for time for examining some more witnesses, The learned Magistrate, however, refused the prayer holding that he did not find any good ground for examination of more P.Ws.
3. Being aggrieved by the order passed by the learned Magistrate rejecting his application to summon other witnesses, lie preferred a revision application to the learned Sessions Judge, Agartala. The learned Sessions Judge was of the opinion that so long as the opposite party had not entered upon their defence it is incumbent on the part of the learned Magistrate to examine the witnesses, named by the petitioner and that the order passed by him rejecting the application to summon the wit-nesses was irregular and he, therefore, made this reference to quash the order passed by the learned Magistrate and for directing him to examine the witnesses cited by the petitioner.
4. Heard the learned Counsel for the petitioner and the opposite party.
5. The learned Counsel for the petitioner while supporting the reference averred that according to Sub-section 2 of Section 252 Cr. P.C. it was mandatory on the learned Magistrate to examine the witnesses who were named in the list filed by the complainant at the time of filling the complaint. But the learned Magistrate refused to summon the witnesses on flimsy grounds, therefore, the order of learned Magistrate should be quashed.
6. The learned Counsel for the opposite party in order to meet this contention averred that Section 252 Cr. P.C. does not make it obligatory on the Magistrate to summon all the witnesses whose names are given by the complainant. The learned Magistrate did not summon the other witnesses as he did not find their evidence relevant to the case and hence his order cannot be called erroneous.
7. Now the sole point for determination in this case is whether the order of the learned Magistrate in refusing to summon the witnesses was erroneous or not
8. In this case this is an admitted fact that the complainant filed a list, along with the complaint, containing the names of 12 witnesses. Out of these 12 persons, 5 witnesses were present and the complainant examined 3 and left the 2 on the ground that they, being won over by the opposite party were not prepared to give the true story. Thereafter, he filed the petition to summon the remaining witnesses, but the learned Magistrate refused to summon those witnesses on the ground that he refused to examine the 2 witnesses and no prayer was made for more P.Ws. in the original hazira of P.Ws. But this reasoning of the learned Magistrate is fallacious. Section 252 Cr PC lays down the procedure to be followed by a Magistrate in a warrant case instituted on the complaint when the accused persons have appeared. This section is as follows:
(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:
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 person 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.
Having regard to the above provisions it is clear that after the complainant and his wit-nesses had been examined on 3-1-64 the learned Magistrate should have followed the procedure as laid down under Sub-section (2) mentioned above. According to Sub-section 2, it was the duly of the learned Magistrate in the present case to ascertain from the complain-ant the names of other witnesses who would be able to give evidence for the prosecution. But the learned Magistrate instead of following Sub-section 2 of Section 252, even rejected the application submitted by the complainant. I, therefore, find that the learned Magistrate was not justified in rejecting this petition. The other contention of the learned Counsel for the opposite party was that if the learned Magistrate had examined the witnesses in that case the accused would have been prejudiced. But this contention is without any merit. A plain reading of Section 252 Cr PC shows that prosecution witnesses can be examined in different stages. The law never gives the accused any right to take plea of prejudice simply because the prosecution wants to examine the other witnesses whose names have been mentioned in the list of witnesses. From the record it is also clear that the accused persons have not entered into their defence as yet, therefore, the question of their being prejudiced could not arise. I, therefore, find that the learned Magistrate has violated the provisions of Sub-section 2 of Section 252 Cr. P.C. in disallowing the prayer of the complainant for examining more witnesses. His order dated 3-1-64 is therefore, illegal.
9. I, therefore, in the circumstances of the case, accept the reference and set aside the order passed by the learned Magistrate. The learned Magistrate is directed to issue summons to the witnesses cited by the petitioner and examine them before calling upon the accused to enter upon their defence.