1. Appellant Mst. Sulki had filed a complaint against the respondents Mohanlal and Sheoratan in the Court of the Magistrate Second Class, Balaghat, under Section 355, Indian Penal Code. The respondents-have been acquitted, and the appellant has therefore-filed this appeal under Section 417(3) of the Criminal Procedure Code.
2. The complaint of the appellant was that on 25-11-1957 the respondents Mohanlal and Sheoratancame to her house and started abusing her without any rhyme or reason. When she asked them why they were abusing her, the respondent Sheoratan asked his son to bring a shoe from, his house. The son brought the shoe and gave it to the other respondent Mohanlal. Thereafter, the respondent Sheoratan told Mohanlal to strike the complainant with the shoe and threatened to kill him if he did not do so. Mohanlal accordingly struck the complainant with the shoe twice.
3. The learned Magistrate held that the fact of assault had not been proved and therefore acquitted the respondents.
4. The main ground on which Shri Y. S. Dharmadhikari for the appellant supported the appeal is that the trial Court wrongly refused to summon witnesses Premlal and Head Constable Moharip of Balaghat Police Station when a request in that behalf was made on 30-7-1958.
5. It may be mentioned that the complainant had fifed a list of five witnesses, but paid process-fees for summoning four of them. On 21-7-1958, these four witnesses were examined. The order-sheet of that date shows that the prosecution closed the case. The Magistrate framed the chargas on 29-7-1958 and adjourned the case to 30-7-1958 to enable the accused to file a list of witnesses whom they wanted to recall for further cross-examination.
On that date, the accused expressed! their desire to call two of the prosecution witnesses. On the same date, an application was made on behalf of the complainant that Premlal and Head Constable Moharir of Balaghat Police Station be summoned as additional prosecution witnesses. The first witness was named in the list of witnesses, but the second was not mentioned therein. The Court rejected the request. It is contended that the Magistrate was bound to summon the two witnesses as provided in Section 256 of the Code of Criminal Procedure.
That section provides that after examination, cross-examination and re-examination of the prosecution witnesses recalled by the accused after charge has been finished, 'the evidence of any remaining witnesses for the prosecution shall next be taken'. Shri Dharmadhikari contends that the expression 'any remaining witnesses' includes the witnesses who were named in the list and also any other fresh witnesses which the prosecution may consider necessary to call in support of the case.
6. Reliance is placed by Shri Dhnrmadhikari on the decision in State of Mysore v. Babasaheb, AIR 1959 Mys 238, where it has been observed that the words 'any remaining witnesses' are wide enough to include any witness who is able to give evidence in support of the prosecution case. According to this view, witnesses who have been named in the list filed under Section 252, Criminal Procedure Code, as also witnesses who are not named would be included within the expression 'any remaining witnesses'. Reference was also made to the decision of Gruer, J. in Hansraj Harjiwan v. Emperor, AIR 1940 Nag 390 wherein it was decided that a list of witnesses as required under Section 252 (2) could be taken by the Court from time to time until the stage of defence was reached and therefore the expression 'any remaining witnesses' in Section 256 included anywitnesses who have been accepted by the Court at any stage before the point for further examination under Section 256 arrived.
7. The question was again considered in Abdul Razak v. Haji Hussain, ILR (1945) Nag 995 : (AIR 1945 Nag 286) and after reviewing the authorities on the point, Herneon J. reached the conclusion that so far as the witnesses stated in the list under Section 252 (2) were concerned, the Court had power to call them under Section 256, but it had no power to call new witnesses, who had not been so included. A stricter interpretation has been placed on the words 'any remaining witnesses' in Raghubir Sahai v. Wali Hussain, AIR 1937 All 189, where it lias been decided that new witnesses could not be called under Section 256 of the Code of Criminal Procedure and where all the witnesses mentioned in the list furnished under Section 252 had been examined before charge, there was no witness remaining who could come under the description in. Section 256(1).
8. Examining Sections 252 to 256 of the Code ot Criminal Procedure we find the following two provisions relevant to the interpretation of Section 256 ;
'252 (2) The Magistrate shall ascertain 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 shall summon to give evidence before himself such of them as he thinks necessary.
* * * * ** * * 254. 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'.
It will be observed that under the first provision discretion is given to the Magistrate to summon only some of the witnesses named by the complainant or the prosecution and under the second provision power is given to the Magistrate to frame a charge after examining only some of the prosecution witnesses. The word 'remaining' itself implies that the remainder must be from something which has already been referred to earlier, and it therefore appears to us that the words 'any remaining witnesses' in Section 256 must have reference to these two provisions only.
In other words, the provision has reference only to the situation in which the Magistrate had considered it expedient to call or examine only some of the witnesses named by the prosecution. We have no doubt that any witnesses who have 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. This does not mean that the request of the complainant to call additional witnesses cannot be considered, where justice so requires. Ample power has been given to the Magistrate under Section 540 of the Code of Criminal Procedure to call such witnesses.
The point, however, is that the complainant has no right to insist upon calling a fresh witness whom he had not named in the list under Section 252(2). With great respect to the learned Judge, who decided the Mysore case, AIR 1959 Mys 238 (supra), we consider that the observations are too wide. The right of _ the complainant under Section 256 is restricted to calling only those witnesses who have been named by him in the list under Section 252 (2). In this view, the complainant had no right to call the Head Constable Moharir of Balaghat Police Station whom she had not named in the list.
9. So far as the witness Premlal is concerned, we have already said that he was named in the list After the complaint was filed, the complainant was asked by the Court to summon such witnesses as she considered necessary to call in support of her case. She chose to call only four of the witnesses. When she closed her case on 21-7-1958, after examining four witnesses and having failed) to summon the fifth, the implication necessarily was that she did not wish to examine the fifth witness. She is deemed to have given him up under these circumstances.
As Section 256 is restricted to calling only those witnesses who have not been called or examined by the Magistrate in exercise of the powers mentioned in Section 252 (2) or Section 254, witnesses given up by the complainant do not fall within the expression 'any remaining witnesses' and the complainant had no right to summon them at that stage. In ILR (1945) Nag 995 : (AIR 1945 Nag 286) (supra), the Magistrate had allowed two additional witnesses to be summoned, and it was held that no interference with this order of the Magistrate was called for in revision.
It was held that the Magistrate did not commit any illegality in acceding to the request. It may be prasumed that the Magistrate considered it necessary to recall the witnesses in the interest of justice in that case and therefore his action could fall under Section 540 of the Code of Criminal Procedure. At any rate, it has not been decided in that case that the complainant has a right to call such witnesses and rejection of such a request by the Court is illegal. We hold that the complainant has no right to call additional' witnesses, except in cases where the Magistrate himself has exercised his discretion in not calling or examining them under Section 252 (2) or Section 254 respectively.
10. We have gone through the statements of the witnesses examined by the complainant in the instant case and find that none of the witnesses mentions the name of Premlal being present on the spot. In our opinion, the summoning of Premlal would not have made any material difference to the case of the complainant. On merits of the case, Shri Dhar-madhikari contends that the trial Court has given undue importance to minor contradictions in the statements of the witnesses. We need not go into - the details. We have scrutinized the evidence ourselves and find that the conclusion of fact arrived at by the trial Court is reasonable on the evidence on record. The Court has not acted arbitrarily in appreciating the evidence and there can be no interference with the acquittal of the respondents, even if a contrary view of the evidence may be possible.
11. We do not find any compelling reasons toset aside the order of acquittal passed by the Magistrate. The appeal is, therefore, dismissed.