P. Govinda Menon, J.
1. This revision petition is filed by the first informant against the order passed by the Sub Magistrate of Mukundapuram in C. C. 749 of 1961 refusing to allow the examination of two witnesses on the side of the prosecution.
2. The case was that the petitioner was assaulted by respondents 1 to 5 on the evening of 124-1961. The case was investigated by the Sub Inspector and charge sheet was filed. Pws. 1 to 6 were examined. Then a report was made that the Circle Inspector who had actually questioned two of the prosecution witnesses be examined as an additional witness. The prayer was allowed and the Circle Inspector of Police was examined as Pw. 7. The case was then adjourned to 6-12-61 for the examination of the Sub-Inspector of Police, the Head Constable and the Medical Officer.
On 6-12-61 both the Police Officers and the Doctor were absent. On that day the Circle Inspector who happened to be in Court endorsed that he was giving up the two police officers and the summons may go to the Medical Officer. The advocate who was appearing for the petitioner prayed that those two witnesses should not be given up and should be examined. The petition was summarily rejected.
The matter was taken up in revision but on the assurance of the Assistant Public Prosecutor that he was applying for the examination of these two police officers the revision petition was dismissed. When it came back to the trial Court, the learned Magistrate rejected the prayer for the examination of the two police officers. The petitioner as well as the Superintendent of Police, Trichur took up the matter in revision to the District Magistrate of Trichur. The learned District Magistrate even though he was of opinion that the Sub Magistrate had given no reasons why the testimony of the two witnesses were tot essential for a just decision of the case refused to refer the matter to this Court.
3. The question now for consideration is whether the prosecution is at liberty to examine these witnesses after having made an endorsement that they are giving up the witnesses. I do not think that by merely making an endorsement that a particular witness Is given up, the prosecution is estopped from examining the witnesses later before the prosecution closes its case. If authority is needed for this position reference may be made to the decision of the Madras High Court in Crown Prosecutor, Madras v. Ramamijalu Naidu 1944 Mad WN Cri 31 : AIR 1944 Mad 169. I have not been shown any decision which takes a contrary view. The learned Magistrate was, therefore, not justified in refusing the request of the posectftion to examine the witnesses. The learned Magistrate does not say that their examination is not necessary for a just decision of the case. Even otherwise nothing prevented the .Court from examining the witnesses as Court Witnesses Under Section 540 Cr.PC
The order is set aside. The learned Magistrate will now afford an opportunity to the prosecution to examine the witnesses, if they so desire. The accused may be questioned over again and may be allowed an opportunity to examine defence witnesses, if any. The revision petition is allowed.