John Beaumont, Kt., C.J.
1. This is a reference made by the Sessions Judge of Surat, raising two questions which are of some general importance in relation to the practice in criminal Courts.
2. The first question is :
Is it obligatory on the accused under the law to submit a list of defence witnesses before the Court after the whole case of the prosecution is over, that is to say, after the further cross-examination of the prosecution witnesses after the charge and the examination-in-chief and the cross-examination of the remaining prosecution witnesses?
3. In order to answer that question, one has to look at certain sections of the Criminal Procedure Code. Section 211, which is one of the sections dealing with committal proceedings in cases triable by the Court of Session, or the High Court, provides;
The accused shall be required at once to give in orally or in writing, a list of the persons (if any) whom he wishes to be summoned to give evidence on his trial.
But Section 291 provides :
[At the trial] The accused shall be allowed to examine any witness not previously named by him, if such witness is in attendance ;...
4. So that the effect is that the accused is only bound to give the names of witnesses whom he requires to be summoned ; he can call other witnesses whose attendance he has procured otherwise. Then we come to the sections dealing with the trial of warrant cases by Magistrates, and the present case falls within that class. Section 252 provides :
(i) 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 :
Section 254 provides :
If, when such evidence and examination have been taken and made, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try, and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.
Section 256, which for the present purpose is the most material section, provides :
(i) 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 reexamination (if any), they also shall be discharged. The accused shall then be railed upon to enter upon his defence and produce his evidence.
5. Now, the question which the learned Sessions Judge raises is whether at that stage the accused is bound to give a list of the witnesses he proposes to call. Certainly the section does not so provide. Section 257 enacts that if the accused applies to the Magistrate to issue any process compelling the attendance of witnesses the Magistrate shall issue such process, except as therein mentioned. But there is nothing in the Code which enacts that the accused shall be bound to supply a list of the witnesses whom he proposes to call. If he wishes the Court to summon the witnesses, necessarily he must give their names. But if he can produce them in Court without the assistance of the Court, he is entitled to do so. If the prosecution ask for an adjournment in order to enable them to ascertain the antecedents of the witnesses, it is for the Magistrate to determine whether such application should be granted or not. It would not. be desirable to attempt to lay down any rule on that point, which must rest on the discretion of the Magistrate. In my opinion, the view which the learned Sessions Judge has expressed is correct, and the answer to the first question raised is that it is not obligatory on the accused to submit a list of defence witnesses at the stage of the trial reached under Section 256.
6. Then the other question is:
Did the learned trial Magistrate err in recording the evidence of Salebhai Isufali, Ex. 10?
7. The position of that witness is that he was not amongst those originally named and examined by the Magistrate under Section 252. But under Section 256,which I have just read, after the framing of the charge and the examination and cross-examination and re-examination of the witnesses who were examined before the framing of the charge, it is provided that the evidence of any remaining witnesses for the prosecution shall next be taken. The learned Sessions Judge thinks that 'remaining witnesses' means 'those who were in the list of witnesses who could have been examined by the prosecution in the first instance, but were not actually examined under Section 252.' It seems to me that there is no justification for limiting the words in that sense. I think that Section 256 clearly enables the Crown to examine witnesses, who had not been examined, or whose names had not been disclosed, before the charge was framed. If the accused desires time to enable him to cross-examine witnesses whose names had not been disclosed, it is open to the Magistrate to give time, just as it is open to the Magistrate to give the prosecution time in the case which I have dealt with in answering the first question. This second question is really covered by a decision of this Court in Emperor V. Burn (1909) 11 Bom. L.R. 1153. The case presumably was not brought to the notice of the learned Sessions Judge.
8. We, therefore, quash the order of the Magistrate, dated November 3, 1941, requiring the accused to put in a list of defence witnesses.