D.S. Mathur, J.
1. This is a reference by the Temporary Sessions Judge, Muzaffarnagar, with the recommendation that the order of the Magistrate refusing to record the statement of the Kanungo be set aside and the complainant, Nizam Ali, be permitted to examine Udaibir Singh, Kanungo, as his witness.
2. The relevant facts of the case are that the opposite parties, namely, the accused persons, put in appearance in the court of the Magistrate on 10-6-57. It was on 24th May, 57 that Nizam Ali, complainant, submitted a list of his witnesses. The hearing was adjourned and on 2-9-57, the evidence of three prosecution witnesses was recorded. The complainant then made a request for the summoning of the Kanungo for giving evidence in the case. The request was allowed and it appears that the Kanungo did put in appearance in court on 9-9-57, but he could not be examined as certain records were not before the court. It was on 23-9-57 that the opposite parties raised an objection that the name of the Kanungo was not mentioned in the list submitted under Section 204(1A), Cr. P. C. and for that reason he could not be examined by the complainant. This objection was allowed and the learned Magistrate declined to record the statement of the Kanungo.
3. Section 204(1A) provides that no summons or warrant shall be issued against the accused under Sub-section (1) until a list of the prosecution witnesses has been filed. This clause was incorporated under the Amending Act of 1955. The section does not speak of issue of process for the appearance of witnesses. Section 252(1) Cr. P. C. was also amended, but not Sub-section (2) thereof. The amendments made to Section 252 were of a formal nature to indicate that the provisions contained in this section were applicable to only those cases instituted otherwise than on a police report.
4. Sub-section (1) of Section 252 provides that on the appearance of the accused the Magistrate shall proceed to hear the complainant, if any, and take such evidence as may be produced in support of the prosecution. The wording is very general and would show that the evidence of all the witnesses of the complainant, whether present in court or not, even though their names were not included in the list of witnesses already submitted, shall have to be recorded. Sub-section (2) will also lead to the same inference, though thereunder the Magistrate has been given the discretion not to summon witnesses if he does not consider their evidence necessary for the decision of the case. It is also provided in this sub-section that the Magistrate shall ascertain from the complainant the names of persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution. Such information shall have to be ascertained after the accused persons put in their appearance and before the commencement of the recording of prosecution evidence.
In case the list of witnesses already submitted was final and the complainant could not examine any witness beyond that list, it would not have been necessary to lay down that the Magistrate should make an enquiry from the complainant with regard to his witnesses. It is when the complainant applies for summoning of witnesses that the Magistrate has the discretion to refuse to issue summonses. But such refusal can be for co-gent and valid reasons. In other words, therefore, if the name of any material witness was not entered in the list of witnesses and the Magistrate is satisfied that the examination of that person is necessary in the interest of justice, that witness can be summoned and examined, though, of course, the complainant should ordinarily give Cut the name of his witnesses before his evidence or that of his witnesses is recorded.
5. The two provisions detailed above cannot be said to be of an irreconcilable nature. Both have their own purpose to serve. The Legislature has provided for submission of list of witnesses so that the complainant may not after making the complaint create evidence and the accused should know beforehand which witnesses are likely to give evidence against him and he may be fully prepared to cross-examine such witnesses. The list submitted for this purpose cannot be held to be such that the complainant cannot be permitted to go beyond the list while adducing his evidence. He can at occasions commit bona fide mistake and unintentionally omit to indicate the name of a material witness in the list.
It can occasionally happen, that evidence not previously in his knowledge may come to his notice and he may like to adduce such evidence also in the case. The magistrates have to exercise their discretion cautiously. If they find that the summoning of a witness beyond the list was with some ulterior motive, they can decline to summon such witness and if present may refuse to record his statement. But where a request is made for the summoning of a public servant like a Kanungo, it cannot be considered to be of a frivolous nature. Further, a Kanungo is likely to make a statement on the basis of official records which have already been prepared. The learned Magistrate was thus in (he wrong in withdrawing his order and later on refusing to record the evidence of the Kanungo.
6. The reference is hereby accepted, the order of the Magistrate refusing to record the evidence of the Kanungo is set aside and the Magistrate is directed to record the evidence of the Kanungo after summoning him, if necessary.