V.R. Nevaskar, J.
1. This is a report made by the third Additional Sessions Judge Indore under Section 438 Criminal Procedure Code.
2. Proceedings of inquiry were going on against the petitioner Champabai for offences under Section 302, 307, 109 and 114 I. P. C., which were triable by the Court of Sessions, before the 2nd Additional City Magistrate Indore. During the course of these proceedings five witnesses on behalf of the prosecution were examined. Out of these five four were said to be the eye-witnesses of the occurrence. On 13-8-1956 the prosecuting inspector after having examined Koushalyabai, the last of these four eye-witnesses reserved the rest of the witnesses and the case was fixed for the statement of the accused and for framing a charge. The next date fixed was 23-8-1956. On 16-8-1956 an application was submitted on behalf of the accused that besides the four eye-witneses examined on behalf of the prosecution two more persons Ramcharan and Mathuribai, disclosed by the police as eye-witnesses of the occurrence, ought to be called and examined at this stage.
3. The learned Magistrate considered this application on 23-8-1956 and rejected the same on the ground that he did not consider their examination to be necessary.
4. The accused thereupon preferred revision petition in the Court of Sessions and the learned Additional Sessions Judge who heard the matter has submitted this report.
5. According to the learned Judge it was obligatory upon the prosecution to examine all the eye-witnesses of the occurrence and that the word 'may' in first part of Section 207-A (4), Criminal Procedure Code reads in the context 'Shall'. He relied upon the decision reported in State v. Ramratan, 1956 Madh B LJ 1314: ((S) AIR 1957 Madh B 7) (A), in support of his view. He further held that the procedure is provided where the case is started in exercise of his discretionary power under Second part of Section 207-A (4) and the witnesses being mentioned as eye-witnesses ought to have considered their examination necessary. He however instead of considering the prayer of the accused for examining them rejected the application giving no reasons. This was, according to the learned Judge, illegal and improper.
6. The question which then has to be considered is whether the Magistrate was bound to examine these two witnesses on a prayer made bythe accused? No doubt the procedural provision upon which the consideration of this question depends is Section 207-A which is new. But as regards examination of witnesses produced on behalf of the prosecution at the stage of inquiry under Chapter XVIII there is no material change.
7. Material words of Section 208, Criminal Procedure Code as it was are :
'The Magistrate shall. ...... take ... all such evidence as may be produced in support of the prosecution. .....,.'
8. Under the amended provision separate procedure is provided where the the case is started on a police report by Section 207-A and Section 208, Criminal Procedure Code deals with those proceedings which are instituted otherwise than on a police report. Under Section 207-A (4), Criminal Procedure Code the provision is as follows :
'The Magistrate shall then proceed to take the evidence of such persons, if any, as may be produced by the prosecution as witnesses to the actual commission of the offence alleged; and if the Magistrate is 'of opinion that it is necessary in the interest of justice to take the evidence of any one or more of the other witnesses of the prosecution, he may take such evidence also.'
9. Section 208, Criminal Procedure Code which deals with proceedings initiated otherwise than on police report provides as follows :
'The Magistrate shall, when the accused appears or is brought before him, proceed to hear the complainant (if any), and take in manner hereinafter provided all such evidence as may be produced in support of the prosecution or in behalf of the accused, or as may be called for by the Magistrate.'
10. It will thus be clear that no material change is brought: about as regards the question under consideration, Under the old Code there was a composite provision providing for the police challans as well as other cases while under the amended provision separate provision is made in respect of each of the two kinds of cases. But both under the earlier composite provision and under the new provision the words used are :
'May (sic) take such evidence as may be produced.'
11. In the case of cases started on a police report the Magistrate has to examine such witnesses as to actual commission of the offence as may be produced. While in the other cases he has to take such evidence as may be produced in support of the prosecution.
12. Thus under the new provision the prosecution has to produce witnesses as to the actual commission of the offence and the Magistrate is bound to examine such of them as are produced. The Section does not make it obligatory upon the prosecution to examine every witness regarding the actual commission of the crime and a discretion is left to them. This does not mean that the Magistrate, in exceptional cases, is powerless to examine material eye-witnesses if the same are withheld. This he can do in exercise of his inherent power. But in practice such a situation can rarely occur. The prosecution if they do not produce sufficient number of witnesses available as to actualcommission of the crime, stand the resk of the accused being discharged.
13. The reason for not making it obligatory for the prosecution at this stage to examine every single witness as regards the actual commission of the crime is plain. It may be that large number of persons, say fifty, might have seen the occurrence. It is unreasonable in such a case to examine all. It may also be that the prosecution consider that sufficiently conclusive case is made out for the prosecution by examining some. In that case at the stage of commitment no further examination of witnesses may be considered necessary. It is also likely that the prosecution are reluctant to rely upon some of the witnesses disclosed during investigation to be witnesses as to actual commission of the crime. It may not in that case be ad-visible to make it compulsory for them to produce such witnesses at that stage.
14. It is, therefore in my humble opinion, not proper to construe the word 'may' in first part of Section 207-A (4) as meaning 'shall'. There is no injustice likely to result by not construing it to mean 'shall'. And in a particular case if the Court feels that injustice may result because of the improper exercise of discretion by the prosecution it is open for the Magistrate to act in exercise of his inherent power. Second part of Section 207-A (4), Criminal Procedure Code of course does not refer to that power, It has a reference to power to take evidence of witnesses other than those who are witnesses of actual commission of the offence.
15. Provisions of old Section 208. Criminal Procedure Code or new Section 208, Criminal Procedure Code do not suggest a contrary conclusion. In lafe they point to the same result,
16. This question came tip before various High Courts in the past while construing Section 208, Criminal Procedure Code as it then stood.
17. In Mt. Niamat v. Emperor, AIR 1936 Lah 533 (FB) (B), this question regarding the construction of word 'may' in Section 208, Criminal Procedure Code (old) was considered.
18. It was observed by the Full Bench as follows :
'The important words in Section 208 (1) are : The Magistrate shall ....... take in manner hereinafter provided all such evidence as may be produced in support of the prosecution or on behalf of the accused, or as may be called for by the Magistrate.'
'The plain wording of this sub-Section clearly cannot be taken in support of the proposition argued by counsel. It is in the discretion of the prosecution to call such evidence as it wishes. There is nothing here to indicate that all the evidence on which the prosecution proposes to rely in the Sessions Court must be called.'
19. Similar view is taken in Section II. Jhabwala v. Emperor, AIR 1933 All 690 (C) and Krishnaji v. State, 54 Bom LR 808: (AIR 1953 Bom 33) (D). The effect of non-examination of witnesses by the prosecution before the Magistrate is that the witnesses cannot be bound down and the prosecution have to depend open such witnesses being willing to give evidence without being bound down or upon being able to persuade the Court to act underSection 540, Criminal Procedure Code : vide AIR 1936Lah 533 (FB) (B).
20. In face of these authorities I am not persuaded to hold that the word 'may' in Section 207-A means 'shall' as has been held in Madhya Bharat Case referred to above.
21. In the present case the prosecution examined four of the six witnesses as to actual commission of the offence. The Magistrate did not consider at that stage, in exercise of his inherent power, to examine witnesses Raincliaran and Mathurabai. What these witnesses stated was clear from copies of their statement in the case diary which was available to the accused.
22. In view of all this it cannot be said that the refusal of the Magistrate to call these witnesses at this stage was improper. Nor can it be said that the accused would be materially prejudiced in his trial in case these witnesses are either produced in the Court of Sessions by the prosecution or not examined at all.
23. The case therefore does not call for myinterference. The reference (report) is thereforerejected.