1. In this reference the question involved is regarding the refusal of the Additional District Magistrate, Indore to issue process to some of the witnesses cited on behalf of the complainant.
2. The facts of this case are that a complaint was filed by the complainant Fandit Ishwardas under Sections 342 and 392, I. P. C., against the Deputy Ranger of Forest, Indore, Shri Tomar. In the complaint filed by him he had mentioned the names of the witnesses whom he wanted to examine. On 7-6-1956 the complainant and one of his witness Lashkarsingh were examined. This Lashkarsingh was in the list initially filed. On that day the complainant was required to pay necessary process for calling the remaining witnesses indicated in the initial list and the case was fixed for hearing on 28-6-1956. The complainant filed process-fees in respect of five witnesses on 26-6-1956. This list included 4 new witnesses whom he wanted to examine.
As the process was paid just two days before the date fixed for hearing, no process was issued on that day and the matter was placed for orders on 28-6-1950. On that day the complainant was absent. A petition was submitted on behalf of the complainant praying for exemption from appearance owing to his illness. This petition for exemption was allowed. The Magistrate on that day also considered the application for examining the witnesses indicated in the list dated 26-6-1956, He rejected the application on the ground that the application for examining these new witnesses was given late and no proper reasons had been shown about the delay. The learned Magistrate therefore closed the complainant's case and fixed the matter for arguments.
3. Aggrieved by this order the petitioner preferred revision-petition in the Court of Session and the learned Sessions Judge has made this reference.
4. According to the learned Sessions Judge it was the duty of the Magistrate to ascertain from the complainant the names of the persons who were acquainted with the circumstances involved in the case and call them of his own accord for being examined in the Court. This the learned Magistrate failed to do. According to the learned Sessions Judge he not only failed to comply with the provisions of Section 252 (2) of the Criminal P. C., but went a step further and closed the evidence of the complainant. This was contrary to law. He has therefore made this reference.
5. It is contended by Mr. Khanwilkar in support of this reference that it was incumbent upon the Magistrate to ascertain from the complainant the names of the persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution. At no stage of the case, according to the learned counsel, the Magistrate fulfilled this obligation. On the other hand when a prayer was made for calling witnesses who according to the complainant were acquainted with the facts of the case, the learned Magistrate without applying his mind to the propriety of calling them has rejected the petition merely on the ground that there was some delay in paying the process for them.
The learned counsel relied upon the decision in Hansraj Harjiwan v. Emperor, AIR 1940 Nag 390 (A), for the contention that power under Section 252 (2), Cr. P. C., can be exercised by the Magistrate from time to time as the occasion arises and is not confined to a single occasion. In the present case the case was at an early stage. Only the complainant and one of his witnesses were examined. Out of the list that was filed on 26-6-1956 one of the witnesses was out of the initial list. The Magistrate had already granted exemption to the complainant from appearance on the ground of his illness and had adjourned the case for hearing arguments on the next date after closing the evidence. Under these circumstances the Magistrate in the fair exercise of his discretion should have at least scrutinised the list and directed issue of process against such of the witnesses who according to Mm could give evidence pertaining to the facts, of the case.
6. On the other hand Mr. Khan who appears for the other side contends that there was no occasion for the learned Magistrate to ascertain from the complainant the names of the witnesses as all the names of the witnesses whom the complainant wanted to cite were indicated in the initial list which he had filed and the Magistrate had already passed an order directing issue ot process against those witnesses after he had examined Lashkarsingh. The learned Counsel says that it was open for the complainant to give additional list of witnesses but that should have been done by him in proper time. This was, not done. A list of new witnesses filed two days before 'the date of hearing could not have been considered by the Court. Moreover when the matter came up for hearing there was no body present for the purpose of pressing this application for fresh list. The Magistrate therefore cannot be said to have acted illegally in closing the prosecution case.
7. On considering the contentions of both the learned counsel, I think that under the circumstances of the present case the order passed by the Magistrate closing the prosecution caseand refusing to summon witnesses cited is erroneous and ought not to stand. Although the complainant had given the names of the, witnesses whom he wanted to examine in the complaint it was open for him to bring to the notice of the Court the names of any further witnesses who were acquainted with the facts of the case. When this was done by the complainant it was incumbent upon the Magistrate under Section 252 (2), Criminal P. C., to examine the list newly filed and call for necessary information on this matter from the complainant. This he did not do.
No doubt on that date the complainant was absent, his counsel was also absent and it was not possible for the Magistrate to ascertain the propriety of calling the new witnesses but he had already granted exemption from appearance to the complainant on the ground of illness. The learned Magistrate in that case should have waited for the next date fixed for hearing and thereafter scrutinising the list on the information given by the complainant and his counsel should have either refused to summon any witness or should have summoned such of them as he considered proper. In not doing so he has committed an error which resulted in the closure of the evidence of the complainant. The order of the learned Magistrate resulted in the closure of the case pertaining to that witness also whose name was there initially.
8. The decision in AIR 1940 Nag 390 (A), does indicate that power under Section 252, Criminal P. C., can be exercised from time to time and is not confined to a single occasion.
9. In the present case no charge has so far been framed and there is no likely prejudice to be caused to the accused.
10. In view of this position the reference deserves to be accepted. It is hereby accepted. Thecase is sent back to the Magistrate with a direction to proceed in the light of the observationsmade above and dispose of the case according tolaw.