Gangeshwar Prasad, J.
1. This application in revision came up before us upon a reference made by Tripathi, J.
2. The relevant facts may be briefly stated. One Ram Lal filed a complaint against Laltu applicant under Section 325 I. P. C. in the court of a Magistrate 1st Class at Kanpur. After recording the statements of some witnesses produced by the complainant, the Magistrate framed against the applicant a charge under Section 325 I. P. C. on 22-1-1963. The Magistrate then fixed 5-2-1963 for recording evidence under Section 256 Cr. P. C. noting in his order that the applicant desired to cross-examine all the witnesses examined by the complainant before the framing of the charge. It appears from the record that on 23-1-1963 the complainant filed a list containing the names of six witnesses proposed to be examined by him under Section 256 Cr. P. C. and the Magistrate ordered summonses to be issued for the said witnesses. The list included the name of one Sri Sinha. Sri Sinha was actually examined on behalf of the applicant on 27-2-1963. On the same day an application was moved before the Magistrate on behalf of the applicant stating that as Sri Sinha had not been named in the list submitted by the complainant under Section 252 Cr. P. C., he could not be examined under Section 256 Cr. P. C., and praying that his evidence be discarded. After hearing arguments on the said application the Magistrate, by his order dated 19-3-1963, held that the complainant was entitled to produce 'further evidence under Section 256 Cr. P. C.,' meaning thereby that he was entitled to produce Sri Sinha although he was not mentioned in the list. Against this order the applicant filed a revision in the court of Session but it was dismissed. Thereupon he came in revision to this Court.
3. The learned single Judge before whom this application originally came up for hearing found a sharp cleavage ofjudicial opinion on the meaning of the words 'any remaining witnesses for the prosecution' occurring in Section 256 Cr. P. C., and he, therefore, thought it expedient that the matter be considered by a larger Bench. The main question for determination before us is whether the words 'any remaining witnesses for the prosecution' in Section 256 Cr. P. C. refer only to those witnesses whose names have been given by the complainant under Section 252(2) Cr. P. C., or whether they are comprehensive enough to cover even those witnesses whose names have not been given under the aforesaid provision.
4. The earliest reported case to which reference is found in the authorities dealing with the question is Emperor v. Percy Henri Burn (1909) 11 Bom LR 1153. In that case a Division Bench of the Bombay High Court rejected the contention that the expression 'any remaining witnesses' is necessarily limited to those witnesses who, as required by Clause (2) of Section 252 Cr. P. C., have been named by the complainant and summoned by the Magistrate before the framing of the charge, and held that the expression is 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 witness. In Emperor v. Nagindas Narottamdas AIR 1942 Bom 214 another Division Bench of the Bombay High Court expressed the same view regarding the meaning and scope of the expression and referred to the earlier case in support of its view. That view was, however, regarded as no longer acceptable by a learned Judge of that court in State of Bombay v. Janardhan, AIR 1960 Bom 513 a case which arose after the insertion of Clause (I-A) in Section 204 Cr. P. C. by Act XXVI of 1955. He certainly referred to AIR 1942 Bom 214, (supra), and felt bound by that decision, but observed that after the introduction of Section 204 (I-A) other sections of the Cr. P. C. and in particular Section 256 have to be read along with Section 204 (I-A) and, therefore, in cases instituted otherwise than on police report the complainant is restricted to the examination of witnesses whose names are given in the list under Section 204 (I-A). The learned Judge, however, proceeded to say that in proper cases if an application is made the complainant may be permitted to add names to the list given by him under Section 204 (I-A). The Madras High Court, in Crown Prosecutor, Madras v C.V. Ramanujulu Naidu AIR 1944 Mad 169, expressed its agreement with the interpretation given to the expression 'any remaining witnesses for the prosecution' in (1909) 11 Bom LR 1153 (supra) and held, that it presumably means the remaining witnesses that the prosecution wishes to examine. The learned Judge who decided the case observed that it seemed to him a general rule of law and equity that the prosecution is at liberty to examine whosoever it pleases until the prosecution case has been closed and that the prosecution case is not closed until the defence begins. In K. Somasundaram v. Gopal, AIR 1958 Mad ' 341 Section 256 Cr. P. C. did not come up for consideration, but Section 204 (I-A) was directly involved and in dealing with that provision the Division Bench which decided the case observed that the phrase 'take all such evidence as may be produced in support of the prosecution' in Sections 244(1) and 252(1) Cr. P. C. shows the ample powers of the Court in that respect. In State of Mysore v. Babasaheb AIR 1959 Mys 238 the Mysore High Court in a case in which the trying Magistrate had rejected the complainant's application to summon additional witnesses under Section 256 Cr. P. C., on the ground that the complainant was not entitled to summon and examine any witness that he had not cited in his complaint or included in the list filed by him under Section 252 (2) Cr. P. C, held that the order of the Magistrate was illegal and could not be supported. The learned Judge deciding the case did not refer to the authorities hearing on the point but he expressed the opinion that the words 'any remaining witnesses' in Section 256 Cr. P. C., are wide enough to Include any witness who, according to the complainant, is able to give evidence in support of his case. The legal position emerging from the reported decisions of the Nagpur High Court cannot be said to be definite. In Hansarj Harijiwan Bhate v. Emperor Gruer J. preferred the view of the Bombay High Court in (1909) 11 Bom LR 1153 (supra) to the contrary view taken in a case of this court to which we will refer at a later stage, but the observation made by him was that if witnesses have been accepted by the court as competent for the prosecution at any stage before the point for further cross-examination under Section 256 arises, even if that stage is after charge, they come under the category of 'any remaining witnesses'. It will be noticed that the power of the complainant to produce additional witnesses was held not to be unfettered but to be subject to a very important condition. The question again arose before the Nagpur High Court in Abdul Razake v. Haji Hussain AIR 1945 Nag 286 where the observation made in Hansraj Harijiwan Bhate (supra) was quoted apparently with approval and as lending support to the view that theexamination of the additional witnesses who were sought to be produced in that case was not permissible. The learned Judge deciding that case also made reference to the still earlier decision of that court in Haiari Tika Lodhi v. Emperor in which it had been held that the prosecution was not entitled in law to have an adjournment for the purpose of examining witnesses not named in the Challan and it had been observed that the prosecutor must come with his case fully prepared and there is no section in the Code which authorises him to file a fresh list of prosecution witnesses. In Rewa Chand v. The State , a Division Bench of the Rajasthan High Court, after referring to the relevant cases and the divergence of opinion, agreed with the view taken by the Bombay High Court in (1909) 11 Bom LR 1153 (supra). The Madhya Pradesh High Court in its Division Bench case of Mst. Sulki v. Mohanlal Adku : AIR1961MP47 , after referring to some of the cases dealing with the question, held that witnesses who had not been named in the list under Section 252 (2) are not covered by the expression 'any remaining witnesses' in Section 256 and the complainant has no right to insist upon calling fresh witnesses, although the request of the complainant to call additional witnesses may be considered where justice so requires.
5. Coming now to the cases of this court, we have to first refer to the un-reported decision of Allsop J. in Criminal Revn. No. 272 of 1935 (decided on 20-7-1935 (All)). In that case, after the trying Magistrate had issued summonses for the prosecution witnesses who were to be cross-examined, he was requested by the prosecution to examine three other witnesses and he passed orders that they should be examined. It was urged in revision before this court on behalf of the accused that the Magistrate was not competent to pass the above order after the prosecution had intimated, as it had done, that its case was closed. Dealing with the above objection the learned Judge observed:
'In my opinion there is no force in this objection. No doubt, the prosecution after the accused has been called to enter upon his defence are not entitled as of right to summon any further witnesses but there can be no doubt that there is a power in the Magistrate himself to summon any evidence which he has reason to suppose is necessary for the proper decision of the questions which are before him and, indeed, under Section 540 of the Code of Criminal Procedure there is a duty cast upon him to see that all relevant and available evidence is produced. It seems to me to make no real difference whether the witnesses are ostensibly summoned as witnesses for the prosecution or as witnesses under the provisions of Section 540 of the Code of Criminal Procedure. I do not think that it can ever be said that an accused person has any right to prevent the production of any evidence which may have a bearing upon the case. He certainly should be given every right to meet it and rebut it if he can, but he cannot insist that any particular witness should not be examined as against him.'
The next case of this court is Raghubir Sahai v. Wali Hussain Khan : AIR1937All189 in which the facts were that after the cross-examination of the witnesses for the prosecution was over, the complainant claimed that he could summon an entirely new witness whom he had not previously mentioned. The Magistrate refused to allow the complainant to produce the new witness. Upon a revision filed by the complainant in this court Bennet, J. said:
'It appears to me under Section 252(2) the complainant is required to give a list of prosecution witnesses. Under Section 254 the Magistrate may examine all those witnesses and then frame a charge-sheet or he may frame a charge-sheet before he has examined all those witnesses. If he adopts the latter course and witnesses remained from the list who had not been examined then those witnesses are the remaining witnesses under Section 256(1) and the complainant has a right to produce them after the cross-examination of those witnesses who have been previously examined. But if the Magistrate has examined all the witnesses for the prosecution in the list under Section 252 (2) and has then framed a charge-sheet, in my opinion there are no witnesses remaining who could come under the description in Section 256(1). This view of the law has been taken by Allsop, J. in Emperor v. Madan Gopal (Criminal Revn. No. 272 of 1935 D/- 20-7-1935 (All).)'
The third case is Nazim Ali v. Wazir : AIR1960All443 where the Magistrate had not permitted the complainant to examine a witness not mentioned in the list submitted under Section 204 (I-A) Cr. P. C. Upon a reference made by the Sessions Judge for setting aside the order of a Magistrate and permitting the complainant to examine the witness D.S. Mathur, J. accepted the reference and observed:
'The list cannot be held to be such that the complainant cannot be permitted to go beyond the list while adducing his evidence.'
The provision involved in that case was Section 204 (I-A), but since it has to be seen whether Section 204 (I-A) Cr. P. C. affects in any manner the interpretation of Section 256 Cr. P. C. the case has a bearing on the question before us. GirirajSingh v. State : AIR1965All131 is the last case of this court to which reference was made in the course of arguments before us. That was again a case decided by D.S. Mathur, J. and there the learned Judge considered in some detail the provision of Criminal Procedure Code relating to the production and summoning of witnesses in trials before Magistrates, In regard to Sub-section (I-A) of Section 204 Criminal Procedure Code he observed:
'Sub-section (I-A) of Section 204 Criminal Procedure Code does lay down that no summons or warrant shall be issued against the accused under Sub-section (1) unless a list of the prosecution witnesses has been filed. But the subsequent provisions do not disentitle the complainant or prosecutor from examining witnesses outside the list.'
Referring then to Section 244 Cr. P. C. whose Sub-section (1) has words similar to those used in Section 252(1) Cr. P. C. the learned Judge said:
'The words 'as may be produced in support of the prosecution' used in Section 244(1) and the word 'any' used in Section 244(2) are general and shall include witnesses not cited in the list furnished under Section 204 (I-A) Cr. P. C.'
Proceeding further, he also observed:
'Section 252(1) Cr. P. C. has been worded on the lines of Section 244 (1) Cr. P. C. and it is nowhere laid down that the Magistrate can examine only such witnesses who are cited by the complainant in the aforementioned list (the list furnished under Sub-section (I-A) of Section 204 Cr. P. C.)'
(Words in brackets ours).
6. We will now refer to the two cases in which the question received an elaborate treatment that also covered the history of the legislation relating to the subject. Diametrically opposite views in regard to the meaning of expression 'any remaining witnesses' were taken in those cases. The first is a Full Bench case, Heman Ram v. Emperor, AIR 1945 Lah 201 (FB), in which Munir, J. delivering the judgment of the Bench, agreed with the view of Bennet, J. in : AIR1937All189 (supra) and observed:
'When the names of all the witnesses for the prosecution have been ascertained by the complainant or the officer incharge of prosecution giving the list of witnesses or by producing them in court, and by the Magistrate performing the function imposed on him by Section 252 (2), Cr. P. C., no fresh witnesses can be examined by the prosecution as of right after the charge is framed and the only power left in the Magistrate to examine other witnesses for the prosecution under Section 540 of the Code under which he has a discretion in the matter.'
The second case is Hadi Bandhu Misra v. King : AIR1950Ori245 in which Ray C. J. dissented from the view expressed in the abovementioned Full Bench decision of the Lahore High Court and said that he was entirely in accord with the view of Sir John Beaumont C. J. in Nagindas Narottamdas Gandhi AIR 1942 Bom 214 (supra) where he held that the learned Sessions Judge was wrong in thinking that remaining witnesses means (in Section 256) 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 and observed:
'It seems to me that there is no justification for limiting the words in that sense. I think that Section 256 clearly enabled the Crown (prosecution) to examine witnesses who have not been examined and whose names have not been disclosed before the charge was framed.'
7. This is a resume of all the cases which were cited before us. They, indeed, disclose a sharp conflict of opinion. Upon an examination of the relevant provisions of the Code of Criminal Procedure however, we venture to think that they furnish a clear answer to the question before us and that answer is also in consonance with principles which are fundamental to all trials.
8. Chapter XXI of the Code which deals with the trial of warrant cases by a Magistrate begins with Section 251. The section provides that the Magistrate shall in any case instituted upon police report follow the procedure specified in Section 251-A, and in any other case the procedure specified in the other provisions of the Chapter. The procedure relating to cases instituted otherwise than upon police report is, therefore, contained in Sections 252 to 259. Section 252, the first in this group opens with a recognition in Sub-section (1) of the right of the complainant, if any to be heard and to produce all such evidence as may support his case. In fact, the Sub-section is cast in the form of an obligation making it imperative for the Magistrate to hear the complainant, if any, and to take all such evidence as may be produced in support of the prosecution. The imperative nature of the obligation contained in Sub-section (1) becomes emphasised in the proviso to that Sub-section which says 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. The proviso thus clearly indicates that the word 'shall' in Sub-section (1), which governs 'hear the complainant' and also 'take all such evidence', makes the Magistrate 'bound' to carry out the directions of the sub-section except only in cases and to the extent specified in the proviso. The provision contained in Sub-section (1) of Section 252 is, therefore, the key provision in the Code as to the right of the complainant to produce evidence and the duty of the Magistrate to take it, and all other provisions dealing with that matter in the above group of sections have to be read in the light of the aforesaid sub-section. Sub-section (2) of Section 252 does not in any manner limit the right recognized and the obligation imposed by Sub-section (1) and it is not possible to read it as restrictive of Sub-section (1). Sub-section (2) is really subservient to Sub-section (1) and is designed to further its object, inasmuch as it imposes a further obligation upon the Magistrate of ascertaining 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 of summoning such of them as he thinks necessary. Sub-section (1) only requires the taking of all such evidence as may be produced in support of the prosecution, and that requirement does not become fully effective unless the Magistrate is also required to employ the machinery of the court for securing the attendance of witnesses who are able to give the evidence. The latter requirement is contained in Sub-section (2). The ascertainment from the complainant of the name of any person likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution also serves the very salutary purpose of acquainting the accused with the names of persons likely to be examined as witnesses for the prosecution; but there is nothing in it which may have the effect of curtailing the right conferred upon the complainant or the duty imposed upon the Magistrate by Sub-section (1). The statutory effect of the non-disclosure by the complainant of the name of a witness under Sub-section (2) of Section 252 is only this that the Magistrate is not bound under that provision to summon such witness to give evidence, but the right of production of such witness is not affected thereby. The right to produce a witness and the right to have him summoned or, speaking in terms of the Court, the duty to take the evidence of a particular witness and the duty to summon him for evidence are not identical things and should not be confused.
9. We may refer in this connection by way of analogy, to Sections 207-A, 211, 216 and 291, Cr. P. C. Sub-section (9) of Section 207-A requires the accused in an inquiry under Chapter XXI of the Code to give orally or in writing a list of the witnesses whom he wishes to be summoned to give evidence on his trial and Sub-section (11) of the section makes it the duty of the Magistrate to summon such witnesses, subject to the provisos added thereto. Similarly Section 211 makes provision for the giving of a list of witnesses by the accused and Section 216 makes it obligatory for the Magistrate to summon them, subject to its proviso. Section 291 then lays down that the accused shall be allowed to examine any witness not previously named by him if such witness is in attendance, but he shall not, except as provided in Sections 207-A, 211 and 231, be entitled of right to have any witness summoned other than the witnesses named in the list delivered to the Magistrate. It is true that the trial court has under Section 540 the power to summon a witness, even when no list has been given under Section 207-A (9) or Section 211 or when the witness is outside the list, and it has also the duty to summon and examine him if his evidence appears to it essential to the just decision of the case. But the power and the duty of the court in the above respect are different from the right of the accused, as the words 'to be entitled of right' in Section 291 clearly show. The right to produce a witness does not, therefore, necessarily include the right to have summoned if the statute specifically provides as to when and how witnesses have to be summoned.
10. Reverting then to Chapter XXI with which we are concerned in the present case, we find that the Code has there too provided what witnesses shall be summoned by the Magistrate in the course of the trial before him. Sub-section (2) of Section 252 makes it incumbent upon the Magistrate to summon such of the witnesses ascertained from the complainant or otherwise as he thinks necessary. In like manner, Section 257 makes it incumbent upon him, except in the situation indicated therein, to summon witnesses desired to be produced by the accused. If, therefore, upon an ascertainment done by the Magistrate under Sub-section (2) of Section 252 the name of a witness is not mentioned, the complainant is not 'entitled of right' (to borrow the words of Section 291) to have the witness summoned, although the Magistrate has still under Section 540, the discretion to summon him and, in case he considers the evidence of the witness essential to the just decision of the case, he is under a duty to summon and examine him. The loss of the right to have the witness summoned, is, as we have said, the only statutory effect of the non-disclosure of the name of a witness under Sub-section (2) of Section 252 and the complainant is not deprived of his right to produce him nor is the Magistrate relieved of his obligation to take the evidence of such witness if he is produced by the complainant.
11. We may now pass on to Section 253. It will be noticed that Sub-section (1) of that section empowers the Magistrate, inthe circumstances mentioned therein, to discharge an accused person not upon merely examining the persons named by the complainant under Sub-section (2) of Section 252 but upon taking all the evidence referred to in Section 252. The words 'all the evidence referred to in Section 252' used in Sub-section (1) of Section 253 obviously refer to the evidence mentioned in Sub-section (1) of Section 252, and they mean not only the evidence of such persons whose names have been given under Sub-section (2) of Section 252 and who have consequently been summoned but also of such witnesses as have not been summoned but are produced by the complainant. If it had been intended by the legislature that the words 'all the evidence' in Sub-section (1) of Section 253 should have reference only to the evidence of such persons as have been summoned under Sub-section (2) of Section 252, the language of Sub-section (1) of Section 253, would surely have been different. The legislature has, however, taken care to provide in Sub-section (2) of Section 253 that if the Magistrate considers the charge to be groundless, he can discharge the accused even though he has not taken all the evidence referred to in Section 252. Evidently, this power was conferred upon the Magistrate to save the accused from the unnecessary hardship and harassment involved in the continuance of a trial on a charge which is groundless. If an order of discharge is passed, the trial comes to an end and no question of taking any further evidence then arises. If, however, a charge is framed the obligation under Sub-section (1) of Section 252 to take all such evidence as may be produced in support of the prosecution continues. The Magistrate is relieved of the obligation to take all such evidence as may be produced in support of the prosecution only when he considers the charge to be groundless and discharges the accused on that account. But the power not to take all such evidence as may be produced in support of the prosecution terminates upon the framing of a charge and is not exercisable thereafter.
12. Then, we come to Section 254. The words 'such evidence' in the section obviously mean the entire evidence referred to in Section 252. But the section does not compel the Magistrate to postpone the framing of the charge till all such evidence as may be produced in support of the prosecution has been taken, and it authorises him to frame a charge at any previous stage i.e., before all the aforesaid evidence has been taken, if he is of opinion that there is ground for presuming that the accused had committed an offence triable under Chapter XXI of the Code. There is nothing in the Code to warrant the conclusion that the right of the complainant to produce all such evidence as may support the prosecution or the duty of the Magistrate to take all such evidence as may be produced in support of the prosecution comes to an end with the framing of a charge and it would, indeed, be strange if it did. No blame attaches to the complainant if the Magistrate, even before he has taken all the evidence desired to be produced by the complainant, forms the opinion necessary for framing a charge and consequently frames a charge. Framing of a charge should only increase the obligation of the Magistrate to take all such evidence as may be produced in support of the prosecution and it cannot, either on the terms of the relevant provisions or on principle, bring that obligation to an end. Can a complainant insist that all the evidence intended to be produced by him should be taken by the Magistrate before a charge is framed? The answer can only be in the negative and the words 'or at any previous stage of the case' in Section 254 completely rule out any other answer. The only conclusion that follows is that the right of the complainant or the duty of the Magistrate under Sub-section (1) of Section 252 does not cease on account of the framing of a charge under Section 254.
13. Omitting Sections 255 and 255-A, we may now take up Section 256 in which the words 'any remaining witnesses for the prosecution' occur. If the legal position upto the framing of the charge under Section 254 is what we have stated it to be, it does not, to our mind, admit of any doubt that the words 'the evidence of any remaining witnesses for the prosecution'' mean the evidence of such other witnesses, besides those who have already been examined, as may be produced by the complainant in support of the prosecution. We have shown that the right of the complainant or the duty of the Magistrate under Sub-section (1) of Section 252 does not terminate upon the framing of a charge under Section 254 and, that being so, there is nothing in the sections that follow to bring about its termination. Of course, as we have said above, the right is confined to the production of evidence and the duty too is confined to the taking of the evidence produced. The right of the complainant does not extend to getting a witness summoned nor does the duty of the Magistrate extend to the summoning of a witness whose name has not been disclosed upon an ascertainment done under Sub-section (2) of Section 252. Certainly, the Magistrate has, even in that case, a discretion to summon such witness, and, if his evidence appears to be essential for the just decision of a case, a duty to summon and examine him under Section 540^ but that is a different thing altogether.
14. The above construction, of the relevant provisions of the Code gives full effect to all of them and it does not either restrict or enlarge the scope of Sub-sections (1) and (2) of Section 252, and, Section 256 in a manner not justified by the language used by the statute. In AIR 1945 Lah 201 (FB) (supra) the Lahore High Court said that the very use of the words 'remaining witnesses for the prosecution' clearly indicates that at the stage to which these words refer the names of the witnesses must be known. It further observed that the section does not say that the evidence of any other witnesses for the prosecution shall next be taken but that the evidence of the 'remaining' witnesses for the prosecution shall be taken. We may point out that the words used in Section 256 are not 'the remaining witnesses' but 'any remaining witnesses', and the proper construction of the words would not be to regard them as limited to such witnesses only whose names have been given under Sub-section (2) of Section 252 but who remain to be examined. We may also, with great respect, observe that the word 'remaining' does not appear to postulate or have reference to a previously fixed number and to previously ascertained names. We find no reason why the words should signify only such witnesses as have remained unexamined cut of those whose names have been given under Sub-section (2) of Section 252 and should not cover all such witnesses whose evidence the complainant desires to be taken in support of the prosecution but whose evidence has not yet been taken. The latter class of witnesses also may, in our opinion, be quite appropriately described as remaining witnesses. It should be noted that the relevant words in Section 256 are not that 'remaining witnesses shall be examined' but that 'the evidence of any remaining witnesses for the prosecution shall be taken.' If we compare these words with the words 'take all such evidence as may be produced in support of the prosecution' occurring in Sub-section (1) of Section 252, it becomes manifest that the former have reference to the latter, and that Section 256 requires the Magistrate to take the evidence of all such witnesses whom the complainant produces in support of the prosecution.
15. We have now to see whether the insertion of Sub-section (1-A) in Section 204 by Act XXVI of 1955 has in any manner altered the situation. Chapter XXII of the Code in which Section 204 occurs deals with the commencement of proceedings before Magistrates. The procedure relating to trial of warrant cases has been dealt with in Chapter XXI and it is not possible to regard the provisions relating to the trial as controlled by the provisions relating to the manner of commencement of proceedings, or to construe the former provisions in the light of the latter. Sub-section (1-A) of Section 204 only imposes a condition precedent to the issuing of summons or warrant against the accused, and there is nothing in that provision or in any other to bar the production or the summoning of a witness not mentioned in the list required to be filed thereunder. If the list so filed had been Intended to limit the witnesses whom the complainant in a warrant case is entitled to produce and whose evidence the Magistrate is bound to take, the obvious course for the legislature would have been to express that intention by introducing an amendment in Section 252 to that effect. The legislature made no reference to Section 204 (1-A) in Sections 252 to 256, even though by the same amending Act it made a change in the opening words of Section 252. The generality of the words used in Sub-section (1) of Section 252, therefore, remains wholly unaffected by Sub-section (1-A) of Section 204. We may also point out that if the list furnished under Sub-section (1-A) of Section 204 was intended to operate as a bar to the production by a complainant of witnesses outside the list, there was no point in retaining in Sub-section (2) of Section 252 a provision for the ascertainment of the names of witnesses from the complainant Sub-section (1-A) of Section 204 does not, therefore, appear to us to be relevant for an interpretation of the provisions under consideration.
16. The object underlying Sub-section (1-A) of Section 204 obviously is to create some check upon the institution of false and frivolous cases and upon the production of untrue evidence. The provision also serves to give the accused at the very start of the case some idea of the evidence which is likely to be produced against him. It cannot, however, be urged that since the object of that provision may to some extent be defeated if a complainant is left free to produce witnesses outside the list furnished by him, the provision should be interpreted as precluding him from producing a witness not mentioned in the list. A bar against the production by the complainant of any evidence before he closes his case cannot be spelled out on the basis of this consideration. The fact that the name of a witness has not been disclosed in the list filed under Sub-section (1-A) of Section 204 will be a matter to be considered in judging the truth and value of the testimony of the witness, but it cannot deprive the complainant of legal right to produce that witness and relieve the Magistrate of the obligation to take his evidence. What we have said above in regard to the effect of Sub-section (1-A)of Section 204 holds good in regard to the effect of Sub-section (2) of Section 252 as well. The fact that the name of a particular witness has not been given by the complainant under Sub-section (2) of Section 252 will likewise be a factor to be taken into account in judging the truth and value of his testimony, but it cannot curtail in any manner the right conferred upon the complainant and the duty cast upon the Magistrate by Sub-section (1) of Section 252. As we have said at an earlier stage of our judgment, the only statutory effect of the name of a witness not having been given under Sub-section (2) of Section 252 is that the complainant is not entitled as of right to have him summoned.
17. On general principles too the conclusion reached by us seems to be the proper conclusion. The party to a proceeding in a court should be entitled to produce all such witnesses as may support his case, and this right should remain exercisable by him till he has closed his case. That he did not disclose the name of a particular witness at an early stage of the case or before the production of the witness in court may be a legitimate ground of criticism against the testimony of that witness, but it should not act as a bar to his production, unless, of course, the statute regulating the proceeding clearly imposes such a bar. Now, in a trial under Chapter XXI of the Code of Criminal Procedure it is not until the 'evidence of any remaining witnesses' has been taken under Section 256 that the prosecution case is closed, and it is only thereafter that the accused is called upon to enter upon his defence. Till then therefore, the complainant should have a right to produce his witnesses. It is true that the court should be anxious to ensure the fairness of all proceedings against the accused and to see that he is in no manner prejudiced in his defence. But, consistently with this, the court has also to see that all evidence bearing on the case is brought before it so that justice may be done. Neither of these principles can be overlooked. The production, after the framing of the charge, of a witness whose name has not been previously disclosed does not make the trial unfair or operate to the prejudice of the accused. The accused has the opportunity of cross-examining such a witness and of saying in his examination under Section 342 all that he has to say in explanation of the evidence given by the witness. He has, thereafter, the same opportunity of controverting the evidence of that witness as he has in respect of the evidence of any other witness. If he finds that the witnesses who have been cross-examined before the production of such a witness have to be cross-examined further in the light of the statement made by the new witness, he may move the Magistrate under Sub-section (1) of Section 257 and if he satisfies the Magistrate that further cross-examination is necessary for the purposes of justice the Magistrate shall call the witness for further cross-examination. We may here observe that Sub-section (2) of Section 252 enables the accused to know only the name of a prosecution witness and not the nature of the evidence that he will give and, therefore, there is no substantial difference in the position of the accused in regard to a witness whose name has not been previously disclosed. Let us then look at the other side of the picture. The complainant might have inadvertently or on account of an inadequate realisation of the importance of a particular piece of evidence omitted to give the name of a witness under Sub-section (2) of Section 252. Again, the need of examining a witness may be felt as a result of the plea taken by the accused under Section 255 or the trend of the cross-examination of prosecution witnesses and the line of defence appearing therefrom. Having regard to these considerations, it is but proper and just that the complainant should have the opportunity to produce such other witnesses as may support his case. In affording him that opportunity the Court only gives to the complainant, in the words of Ray, C. J. in the Orissa case referred to above, a square deal. We may here draw attention to Section 251-A which regulates the trial of warrant cases instituted on a police report. Sub-section (7) of Section 251-A provides that the Magistrate shall take all such evidence as may be produced in support of the prosecution and it places no restraint at all upon the right of the prosecution in respect of production of evidence. An investigation by the police in which witnesses have been ascertained and examined precedes the institution of a case on a police report and yet the legislature makes it obligatory for the Magistrate to take all such evidence as may be produced in support of the prosecution. There seems to be no reason why a complainant in a case instituted otherwise than on police report should stand on a different footing. Further, in cases governed by Section 251-A too situations may arise when the accused has already cross-examined the prosecution witnesses, whose names are mentioned in the charge-sheet submitted by the police and copies of whose statements during investigation have been supplied to him, without having been made aware of the names of other witnesses who are later produced against him. If in such situations the accused feels the necessity of cross-examining the former set of witnesses with reference to the testimony of the latter set he can move the Magistratefor recalling them and the Magistrate may recall them for further cross-examination. On the view taken by us, the position of the accused in regard to the above matter in the trial of a warrant case instituted otherwise than upon police report does not as we have shown above, differ from that of an accused in a case instituted upon police report. We must in the end also state that the question as to the true meaning of the words 'any remaining witnesses for the prosecution' has in the first instance and primarily to be determined on the basis of the relevant statutory provisions, and it is only when they do not yield a clear answer that general principles may be called in aid. In our opinion, the relevant statutory provisions do not at all leave the meaning of the said words in doubt, and we have only tried to show here that the conclusion which we have reached as to that meaning is also in complete accord with principles of justice.
18. For the reasons discussed above we hold that the words 'any remaining witnesses for the prosecution' in Section 256 Cr. P. C. do not refer only to those witnesses whose names have been given by the complainant under Sub-section (2) of Section 252 of Cr. P. C., but also include all such witnesses as may be produced by the complainant in support of the prosecution even though they have not been summoned or named before the framing of the charge. The complainant in the instant case was, therefore, entitled to produce Sri Sinha after the framing of the charge. We have not been able to find anything on record showing that the Magistrate had actually ascertained the names of witnesses from the complainant under Section 252(2) Cr. P. C. But, assuming that he had done so, the only effect of not mentioning the name of Sri Sinha was that the complainant could not, as a matter of right, have him summoned. The Magistrate had, however, the power to summon him and he thought it fit to exercise that power. In taking the evidence of Sri Sinha the Magistrate acted in conformity with law and there was no illegality, irregularity or impropriety involved in it.
19. We may also point out that Sri Sinha was actually produced, examined and cross-examined. The Magistrate had, undoubtedly, the jurisdiction to take his evidence, and the prayer of the accused that the evidence be discarded was entirely misconceived and unworthy of being entertained.
20. The revision has no force and we accordingly reject it.