(1) The point which has been referred to this Court for determination by the learned Additional Sessions Judge, Chittoor, is:
'Whether the dismissal of the petition to examine a witness on behalf of the prosecution after the charge has been framed against the accused cannot be upheld in view of the state of law as it prevails'.
(1a) The facts leadings to this reference are the following: The complainant made allegations against the accused that the accused had defamed him and his firm . In the complaint he did not state the name of any witness for him . The complainant has examined himself as P.W.1. After the chief examination of P.W.1, charges were framed under sections 500 and 501, Indian Penal Code, against both the accused on 15th April, 1960. That day the accused did not cross examine P.W.1.
The witness was recalled on 27th May , 1960, for cross - examination by the accused and in the meanwhile the case underwent two more adjournments on account of the absence of one or the other of the accused. In the notes on the complaint there is an endorsement to the following effect:
'P.W.1 recalled and cross - examined. Prosecution case closed. Adjourned to 28th May, 1960 for 342 examination.'
On the same day 27th May, 1960, a petition was filed by the complainant for permitting him to examine one B.L. Narasimhulu Naidu as a prosecution witness . The ground stated in that application has been that the examination of the said witness had become necessary as a result of the cross - examination of P. W. 1 by the accused. In regard to this particular when the prosecution case closed there is a variation in the version given by the learned First Class Magistrate who is trying the case. In the order of the learned Magistrate the following has been stated:
It is only on the representation made by the complainant's advocate that he has no further witnesses, in the examination of P.W. 1 only the charges are framed.'
Some mention about the defence advocate asking the counsel for the prosecution whether the prosecution has any more witnesses to examine, seems to have been hinted at more than once in the order of the learned First Class Magistrate. But even a close and careful reading of what has been stated in that order does not remove the doubt attaching to this particular. In any case it seems to be certain that no mention has been made to appear that only on the representation of the prosecution that there are no other witnesses to be examined, the case of the prosecution was closed.
That could not be so is obvious from the fact that on the day when the Court noted to the effect that the prosecution case was closed a petition for examination of another witness has been filed. Therefore it should be taken that as the learned Sessions Judge seems to point out that there was no representation by the prosecution that no further witness will be examined on its behalf. Therefore the facts as stated by the learned judge have to be taken as correct.
In such a case it has to be set down on the facts disclosed that P. W. 1 was examined - in - chief , charges were framed on 15th April 1960 and the case was adjourned. Thereafter at the request of the accused P.W.1 was re- called on 27th May 1960, and in spite of the application having been made by the complainant to examine another witness, viz. B. L. Narasimhulu Naidu, the trial Court recorded that the prosecution case was closed and rejected the application.
(2) On the question whether the prosecution can examine witnesses after the charges have been framed against the accused when as a matter of fact there was no representation by the complainant that he does not want to examine further prosecution witnesses, it has to be answered with reference to the provisions of sub - section (1) of Sec. 256, Criminal Procedure Code, and it may therefore be read:
'If the accused refuses to plead, or does not plead, or 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 re - called 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 called upon to enter upon his defence and produce his evidence.'
(The underscoring ( here into ' ') is mine).
(3) But the immediate step preceding the question that has to be put to the accused is whether he wishes to cross-examine any witnesses as contained is Sec. 254, Criminal Procedure Code which states thus:
'If, when such evidence and examination have been taken and made, or at anay 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'.
It is therefore clear that after the farming of the charge, the accused has to be asked whether he wishes to cross-examine any of the prosecution witnesses. If the accused signifies his desire to cross-examine any prosecution witness who has already been examined. After that the evidence of any remaining witnesses for prosecution can be taken. This conveys the meaning that the complainant can thereafter find a chance for examining more witnesses for the prosecution.
As regards particular witnesses who could thus be examined by the prosecution at that particular time, there has been a controversy. One point of view is that 'any remaining witnesses' mentioned in the under-scored sentence in sub-section (1) of Sec. 256, Criminal Procedure Code, restricts to only those who have been mentioned in the list given by the prosecution as provided for under sub-section (2) of Sec. 252, Criminal Procedure Code. The other view is that these words are not restrictive nor do they impose any limitation , and that the prosecution can produce witness mentioned in the list furnished under sub-sec. (2) of Sec. 252, Criminal Procedure Code, and more or other witnesses whom they choose to examine.
(4) Mr. Venugopala Reddy, arguing in support of the reference has referred to the decision of several High Courts on this points but has not been able to place any case decided by this High Court. In the case reported in Emperor v. Burn, 11 Bom LR 1153, of the Bombay High Court, Chandavarkar, J. negatived the contention that allowing of the examination of fresh prosecution witnesses who had not been named originally and summoned, as required by clause (2) of Sec. 252, criminal Procedure Code, after the statements of the accused are recorded, is a direct violation of the terms of Sec. 256, Criminal Procedure Code.
The learned Judge has observed that the expression 'any remaining witnesses' used in section
256, Criminal Procedure Code, is not necessarily limited to those witnesses referred to in sub-section (2) of Sec. 252, Crimina Procedure Code. In this view, the expression is wide enough to include any witness who according to the prosecution are able to support its case though they have not been summoned, provided of course in doing so those witnesses have not been 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. In a later decision of the Bombay High Court reported in Emperor v. Nagindas, AIR 1942 Bom 214 Beaumont, C. J. speaking for a Division bench consisting of himself and Sen, J. observed the following :
'Did the learned trial Magistrate err in recording the evidence of Salebhai Isufali, Exhibit 10? The position of that witness is that he was not among those originally named and examined by the Magistrate under Sec. 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 lists of witnesses who could have been examined by the prosecution in the first instance, but were not actually examined under Sec.252. It seems to me that there is no justification for limiting the me that there is no justification for limiting the words in that sence. I think that section 256 clearly words 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
The Nagpur High Court has also preferred the Bombay ruling on this point and the case of Hansraj Harjiwan v. Emperor, AIR 1940 Nag 390 may be referred to. That decision quotes with approval the observation of Pollock, J., in (Sodhi v. Emperor), Criminal Revn No. 485 of 1939 to the following effect:
'The power given to the Magistrate under section 252(2), may, in my opinion, be exercised from time to time as the occasion requires'.
Gruere, J. who decided that case was of the opinion that if witnesses have been accepted by the Court as competent for the prosecution at any stage before the point for further examination under Sec. 256, and, even if that stage is after the framing of the charges, they come under the category of 'any remaining witnesses'. A Division Bench of Rajasthan High Court considered the same question in the case of Rewa Chand v. State, (S) AIR 1955 Raj 113. Bapna, J. speaking for the Division Bench, has given another reason why limitation cannot be read into the language of Sec. 256. According to him the legislative history of the section provides one answer. The words 'any remaining witnesses' have been introduced by the amendment of the Code in 1898 because it had to be done as a consequence of giving discretion to a Magistrate to frame a charge without examining all the witnesses named for the prosecution.
Adopting this line of reasoning, he preferred to follow the view taken in the case of Hadibandlu Misra v. King, : AIR1950Ori245 , wherein it has been mentioned that since the law previous to the insertion of these words was not different it couldn't be said that this insertion was intended to limit the witnesses to only those who had remained in the list. The view was expressed that the proper words if any change was intended would have been 'the remaining witnesses'. In the case of : AIR1950Ori245 Ray, C. J. of the Orissa High Court has elaborately discussed the views of several High court and distinguished the case decided by the Full Bench of the Lahore High Court in Heman Ram v, Emperor, AIR 1945 Lah 201.
The learned Chief Justice found that the consensus of opinion expressed by almost all the High Court is not in derogation of the principle that the prosecution can always examine its witnesses and that the mere framing of the charge and the non-mention of the witnesses in the lists furnished under sub-sec. (2) of Sec. 252 would not be a bar. The case of Crown Prosecutor v. Ramanujulu Naidu (1943) 2 Mad LJ 672: (AIR 1944 Mad 169) had been pointed out as expressing the same view. Horwill, J., observed that one cannot presume that because the Magistrate has framed a charge, that all the prosecution evidence has been taken and that the expression 'remaining witnesses for the prosecution' in Sec. 256(1) presumably means the remaining witnesses that the prosecution wishes to examine.
Therefore, the Madras view also is in accord with construing that sub-section (2) of Sec. 252 has not imposed any restriction or limitation on the examination of further or more witnesses and any reference to the list given by the prosecution or non-examination of those witnesses in the complaint itself is immaterial. These decisions in my view make it clear that it is possible to read tha power is vested with the Court under sub-sec. (2) of Sec. 252 to ascertain the witnesses to be examined on behalf of the prosecution only for the purposes of summoning them.
This provision could therefore be said to have been meant to facilitate steps to be taken by the prosecution and also to enable the accused to get ready for cross-examining those witnesses. The purpose for which this provision has been made is for the avoidance of the prosecution taking the accused by surprise when the witnesses are examined for the prosecution. Therefore reading it so as to include added functions such as that which is sought to be imported by virtue of the presence of the words 'any remaining witnesses' in that section is indeed needless. Further such ascertainment of the lists of witnesses contemplated under sub-sec. (2) of Sec. 252 is not for the purpose of limiting the number of witnesses to be examined on behalf of the prosecution also becomes plain on a reading of Sec. 251-A.
It is not possible to find any words of limitation in regard to the examination of the prosecution witnesses after the framing of the charge. Further, though I certain respects the trial in a warrant case instituted by a complainant, still in the matter of examination of all the witness for the prosecution, no invidious distinction in my view has been contemplated between the procedure laid down for the two classes of cases viz., those instituted on private complaint and those by the police. When it is also remembered that Sec. 251-A has been placed in the Code with a view to have speedy trials, nd that the provision does not curtail the rights of the prosecution to examine any number of witnesses, it is inconceivable how that limitation could have been meant only in the trial of a case filed by a private complainant.
It my also be pointed out that the Mysore High Court in the case decided in State of Mysore v. Babasaheb Shetsanadi, 1959 Mad LJ (Cri) 341: (AIR 1959 Mys 238) which has been relied upon by the learned Additional sessions Judge fell in line with the view of the Bombay High Court. Again emphasis has been laid in that decision regarding the necessity not to spring a surprise upon the defence by examining further witnesses all of a sudden and for the need to give the defence sufficient time by adjourning the case to enabled the accused to cross-examine such witnesses.
I am also of the view that the meaning of 'anay remaining witnesses' has been strained to such an extent as to make it restrict to the list of witnesses specified in sub-section (2) of Sec. 252; because another construction that these words are placed in contrast with 'those witnesses who have been examined' and re-called for cross-examination at the instance of the accused is not altogether incongruous.
(5) In support of the other view Mr. Jayachandra Reddy relied upon the cases reported in Abdul Razake v. Haji Hussain, AIR 1945 Nag 286, G. V. Kale V. State, : AIR1957MP240 and Raghubir Sahai v. |Wali Hussain, AIR 1937 All 189. Of these the first two decisions turn upon the fact that the case for the prosecution had been admittedly closed and the right to examine any of the remaining witnesses will not therefore accrue. They are therefore quite distinguishable even as pointed out by the learned Chief Justice in : AIR1950Ori245 . The case reported in : AIR1957MP240 , contains very little discussion and it is not therefore possible to get much help from it.
As for the case reported in AIR 1937 All 189, there is no doubt it is therein laid down that no new witnesses not included in the list furnished under sub-sec. (2) of Sec. 252 could be produced by the prosecution. The only reasons given by Bennet, J., who decided that case, contrary to the view taken in 11 Bom LR 1153, is that the Bombay ruling was of the year 1009 and that it was not followed by the Allahabad High Court. It would thus be seen that the contrary view taken by the learned Judge in the above cases seems to have proceeded more on parochial considerations.
(6) It may however be mentioned here that in the instant case there is no list of witnesses made out by the Court under Sec. 252 and it is doubtful that the Court did ascertain the lists of witnesses; and therefore the Court in equity could not have denied the opportunity to the prosecution to examine more witnesses even though charges have been framed. In this view also the reference made by the learned Additional Sessions Judge has to be accepted. The result is the order of the trial Court rejecting the application for the examination of B. L. Narasimhulu Naidu is set aside. The trial court is directed to allow the examination of this witness for the prosecution.
(7) This petition is accordingly allowed.
(8) Reference accepted.