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Bhimji Karsan Vs. Nanduben Nagji and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1971)12GLR123
AppellantBhimji Karsan
RespondentNanduben Nagji and anr.
Cases ReferredMochi Motilal Jagjivandas v. State and Ors.
Excerpt:
- .....court cannot refuse to examine them on the only ground that their names were not mentioned in the list filed with the complaint.3. the learned magistrate was rather in error in refusing permission to the complainant to examine witnesses kept present by him on the ground that their names are not mentioned in the complaint. in a given case, if the names are not mentioned in a complaint, that may affect the credibility of the witnesses but that has nothing to do with the opportunity of the complainant to lead his evidence. therefore, the learned magistrate was in error in refusing the permission to examine witnesses who were kept present. this view finds support from one or two decisions to which 1 would presently refer. in nathia and anr. v. sonia and ors. , the court has observed as.....
Judgment:

D.A. Desai, J.

1. The applicant before this Court Bhimji Karsan filed Criminal Complaint in the Court of the Judicial Magistrate, First Class, Rajkot, registered as Criminal Case No. 295 of 1969 against opponents Nos. 1 and 2 for having committed an offence under Section 341 read with Section 34 of the Indian Penal Code. The complainant had named certain witnesses in his complaint. After the evidence of the complainant was recorded an application Exh. 11-D was given on behalf of the complainant requesting the learned Magistrate to permit the complainant to examine two witnesses whose names were given in the application and who were kept present before the Court. The learned Advocate for the accused objected to the application being granted. The learned Magistrate rejected the application observing that the complainant had named four witnesses in his complaint and they are dropped without assigning any reasons and two new witnesses are produced whose names are not mentioned in the complaint nor were their names disclosed in the evidence of the complainant. The complainant preferred Criminal Revision Application No. 29 of 1969 in the Court of Sessions at Rajkot. The learned Sessions Judge rejected the application observing that the order of the learned Magistrate is neither illegal nor perverse nor incorrect and no case is made out for interfering with the same. The complainant has thereafter moved this Court by this Revision Application challenging the order of the learned Magistrate passed on Exh. 11-D and the order of the learned Sessions Judge dismissing the Revision Application.

2. In my opinion, this Revision Application ought to be allowed. The complainant filed complaint against the accused for having committed an offence under Section 341 read with Section 34 of the Indian Penal Code in that he was wrongfully restrained from proceeding along the path or the way leading to the premises in his occupation by the accused who are landlords. The punishment for the offence under Section 341 is simple imprisonment for one month or fine of Rs. 500/- or both. The case would therefore, be a summons case and the Court while trying such a case would have to follow the procedure prescribed in Chapter XX of the Criminal Procedure Code which prescribes the procedure for trial of summons cases by the learned Magistrate. Section 244 which is included in Chapter XX provides that if the accused does not admit the offence with which he is charged, the Magistrate shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution and also to hear the accused and take all such evidence as he produces in his defence. Proviso to the section is not material. Sub-section (2) of Section 244 provides that the Magistrate may if he thinks fit, on the application of the complainant or accused issue a summons to any witness directing him to attend or to produce any document or other thing. It would appear that after the plea of the accused in summons trial is recorded and if the accused pleads not guilty to the accusation levelled against him, the Court must proceed to hear the complainant if there is any and to take all such evidence as may be produced in support of the prosecution. A duty is cast on the Court to take all the evidence as may be produced in support of the prosecution. If, therefore, after the complainant is examined and he has kept the witnesses present in the Court and the complainant is willing to examine them, a duty is cast on the Court to take such evidence. The discretion, if any, which the Court has in taking evidence, enters into the picture where the complainant seeks the assistance of the Court to summon witnesses. At that stage, it would be open to the Court to decide whether the witness is necessary or whether the application for summoning the witness is made for the purpose of vexation or delay or for defeating the ends of justice. In such a case, the Magistrate may decline to summon the witness. If the complainant thus seeks the assistance of the Court for summoning the witness, certainly there is discretion in the Magistrate, to be exercised judicially in either accepting or refusing the request. But in my opinion, there is no discretion in the Magistrate by which he can refuse to examine the witness produced by the complainant and kept present after the plea of the accused is recorded. At that stage, the Court cannot decline to examine the witnesses merely on the ground that their names were not disclosed or set out in the complaint filed by the complainant. It was, however, urged that looking to the amendment to Section 204, it is incumbent upon the complainant to submit a list of prosecution witnesses along with his complaint and until such a list is submitted or such a list is filed, the Court shall not issue the process. 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. When a complaint is filed before the Court and before the Court proceeds to issue process, it is open to the Court to compel the complainant to produce his list of witnesses and may even decline to issue the process till such a list is filed. But once that list is filed it is the discretion of complainant whether to examine the witnesses mentioned in the list or not to examine them. The complainant may have very valid reason for not examining some of them or even all of them. The complainant cannot be compelled to examine witnesses nor the complainant can be refused an opportunity to prove his case by examining other witnesses whose names are not disclosed in the list if they are produced and kept present in the Court. Section 244 does not provide that after the plea of the accused is recorded and thereafter the evidence of the complainant is recorded, the Court shall take the evidence of those witnesses only, whose names are set out in the list initially filed along with the complaint. That is not the language of Section 244 and in order to reach such a conclusion something more will have to be read in Section 244 or the section will have to be recast. The language of Section 244 does not leave room for doubt that a duty is cast on the Court to take evidence that is produced by the complainant and the Court cannot decline to take that evidence on the ground that the witnesses who are sought to b produced and examined are those whose names are not mentioned in the list, initially filed with the complaint. Section 204(1A) is not a proviso to Section 244. Both are independent of each other and operate at different stages. Section 204(1A) operates at a stage when the complaint is entertained. Section 244 comes into play at the stage when the accused pleaded not guilty to the charge and the complainant proceeds to prove his case. At this stage, the complainant may keep his witnesses present despite the fact that their names were not mentioned in the complaint, and the Court cannot refuse to examine them on the only ground that their names were not mentioned in the list filed with the complaint.

3. The learned Magistrate was rather in error in refusing permission to the complainant to examine witnesses kept present by him on the ground that their names are not mentioned in the complaint. In a given case, if the names are not mentioned in a complaint, that may affect the credibility of the witnesses but that has nothing to do with the opportunity of the complainant to lead his evidence. Therefore, the learned Magistrate was in error in refusing the permission to examine witnesses who were kept present. This view finds support from one or two decisions to which 1 would presently refer. In Nathia and Anr. v. Sonia and Ors. , the Court has observed as under:

All that may be said is that if the name of a certain witness is not mentioned in the list and he is still sought to be produced by the prosecution within the meaning of Section 244 Criminal Procedure Code, that may go in a proper case and under proper circumstances, to effect the weight to be given to the evidence of such a witness; but that would be an entirely different matter from saying that such a witness cannot be examined at all.

In Ali Jan v. Amir Khan : AIR1957Cal332 , it has been observed as under:

All that Section 204(1A) is designed to serve is that the accused should be apprised at the earliest point of time of the persons who are likely to give evidence against him. As a matter of fact, no summon or warrant shall issue against an accused unless a list of prosecution witnesses has been filed; but that does not mean and imply that in no circumstances can a person who is not included in the list be permitted to be examined in the course of the trial. If that was the real intention then one would expect a clearer and firmer expression of the view by the Legislature than what is to be found in Section 204(1A) of the Code. Moreover if this extreme contention prevailed that would have the effect of abolishing Section 244(1) of the Code of Criminal Procedure. That section provides, as I have seen, that the Magistrate will take all such evidence as may be produced in support of the prosecution. The section does not say that the evidence must be evidence of only those persons whose names appear in the list of witnesses filed under Section 204(1A). As regards the value to be attached to the evidence of a person whose name was not included in the list, it has to be left to the criticism of the party affected that such evidence should not be believed; but that is a matter affecting the credibility of evidence. The question here is different and that concerns the right and duty of the Court to allow examination of a person as a witness whose name has not been included in the list.

4. It appears that before the learned Sessions Judge, reliance was placed on behalf of the accused on a decision of this Court in the case of Mochi Motilal Jagjivandas v. State and Ors. II G.L.R. 436. The question that was considered in that case was whether it is open to the Court to permit the complainant to examine additional witnesses whose names were not set out in the initial list. The view taken in the case was that the Court has discretion in this matter and it is open to the complainant to make an application to the Court to add additional names to the list given under Section 204(1A) and if the Court allow the same they can be summoned and their evidence can be recorded. That is not the question in this case and therefore, this decision would not help in deciding the point raised in this Revision Application.

5. In my opinion, it appears crystal clear that notwithstanding the fact that the names of two witnesses were not mentioned in the list filed with the complaint, if after the evidence of the complainant is recorded he has kept the witnesses present, it is not open to the Court to refuse to record their evidence on the only ground that the names of these witnesses were not shown in the list. The aspect that the names of witnesses who are sought to be examined were not set out in the initial list filed with the complaint may have same bearing on the credibility of these witnesses but that is entirely a different thing. Viewed from this angle, the learned Magistrate was not justified in refusing to record the evidence of the witnesses who were kept present by the complainant. Therefore, the order on Exh. 11/D deserves to be quashed and set aside.

6. In the result, the Revision Application is allowed and the order passed by the learned Magistrate on Exh. 11/D is quashed and set aside. The learned Magistrate to proceed further with the case in accordance with law and in the light of the observations made in this judgment. Order accordingly. Rule made absolute.


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