1. This is a complainant's application in revision against the order dated 30-3-1954 of the learned Honorary Magistrate Shri D. Vable rejecting the complainant's request for further examination of the witnesses Under Section 258, Cr.PC
2. The complaint was filed on 31-10-1953 against six persons charging them with having committed offences Under Sections 323, 427 and 454, IPC It was sent to the Court of the Honorary Magistrate on 5-11-1953. The accused appeared on 19-11-1953 and the case was adjourned to 1-12-1953. The complainant was ordered to file his list of witnesses by 23-11-1953. On 23-11-1953, the complainant filed a list giving the names of three witnesses. It also contained a note that the remaining witnesses will be produced, if necessary.
The complainant and his three witnesses named in the list were examined on 1-12-1953. The accused were examined on 22-12-1953. On 31-12-1953, charge was framed against the accused Mangi-Jal and the other accused were discharged and the case was adjourned to 28-1-1954 for further cross-examination of the P. Ws. The witnesses were cross-examined on that date. The complainant made a request for examining four more witnesses. This was objected to by the accused and the case was adjourned to 11-2-1954. On that date the learned Magistrate did not attend the Court and the case was adjourned to 6-3-1954. The complainant and his counsel happened to be absent when the case was called for hearing at 11 a.m. The Magistrate rejected the request for examination of more witnesses and partly examined a defence witness.
At that stage, the complainant and his counsel appeared and told the Magistrate that a revision had been filed in the Court of the Sessions Judge against his order disallowing the examination of further witnesses. Thereupon the proceedings were stayed.
3. The learned Sessions Judge dismissed the application in revision.
4. It is urged on behalf of the complainant that the learned Magistrate had not complied with the mandatory provisions of Section 252(2), Cr.PC and in view of the note in the list of witnesses, the witnesses whom he wanted to examine were 'the remaining witnesses for the prosecution' Under Section 256(1), Cr.PC and he had a right to examine them.
5. Who are 'the remaining witnesses for the prosecution' Under Section 256(1) has been the subject of controversy and there is a wide divergence of opinion between the different High Courts. On behalf of the complainant, reliance has been placed upon 'Emperor v. Nagindas Narottamdas' AIR 1942 Bom 214 (A), in which it was held that Section 256 clearly enables the Crown to examine witnesses who had not been examined or whose names had not been disclosed before the charge was framed. If the accused desires time to enable him to cross-examine witnesses whose names had not been disclosed, it is open to the Magistrate to give time. This was followed by the Orissa High Court in 'Hadibandhu Misra v. King' AIR 1950 Orissa 245 (B), in which it was laid down that there is no justification for limiting the words 'remaining, witnesses' in Section 256 to those who were in the list of witnesses who could have been examined by the prosecution in the first instance, but were not actually examined Under Section 252.
6. On the other hand, reliance by the accused has been placed upon 'Raghubir Sahai v. Wali Husain Khan' AIR 1937 All 189 (C), which was followed in 'Balchand v. Sukhdeo', 1938 AM LJ 78 (D) and 'Abdul Razake v. Haji Hussain Server' AIR 1945 Nag 286 (E), It was held that Under Section 252(2) the complainant is required to give in a list of prosecution witnesses. If the Magistrate has examined all the witnesses for the prosecution in the list and has been framed a charge-sheet, there are no witnesses 'remaining' who could come under the description in Section 256(1), Cr.PC Reference was also made to 'Balu Ram v. The State', 1950 AM LJ 24 (F), but the facts of that case were materially different as the witness whom the prosecution wanted to examine had been named before the charge was framed.
7. Both the parties have relied upon the Full Bench decision of the Lahore High Court reported in 'Heman Ram v. Emperor' AIR 1945 Lah 201 (FB) (G) in which it was laid down that the provisions of Section 252(2) are mandatory and the Magistrate must ascertain the names of all the persons who may be able to give evidence for the prosecution and this duty must be performed before the charge is framed,. When before the charge is framed, the list of persons who may be able to give evidence for the prosecution has been ascertained Under Section 252(2) no fresh witnesses can be examined by the prosecution Under Section 256, That was also the-view of the Orissa High Court in the cAse refer-1 red to above. It was remarked that the filing of a list of witnesses either in the charge-sheet filed by the investigating officer (or by the complainant) would not relieve the Magistrate of the duty cast upon him by Section 252(2). It is a duty which must be performed in all its essentialities.
8. The provisions of Section 252(2), Cr.PC are no doubt mandatory and a Magistrate must before the stage of Section 254 is reached, that is before an accused is charged or discharged, ascertain the names of all persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution. There is no particular stage for ascertaining the names of the prosecution witnesses, but it must be done at the earliest stage of the case and at all events before the stage of Section 254, Cr.PC is readied. An order calling upon a complainant to file the list of witnesses is ordinarily sufficient compliance with the provisions of Section 252 (2) and unless the prosecution has disclosed the names of any witnesses before an accused is charged or discharged, the prosecution has no right to examine any other witnesses as 'remaining witnesses' Under Section 256(1).
The learned Magistrate by his order dated 19-11-1953 directed the complainant to file the list of witnesses and as mentioned above the complainant filed a list on 23-11-1953 containing the names of three witnesses and a note that the other remaining witnesses will be examined if necessary. It clearly means that besides the three witnesses named in the list, there were also other witnesses acquainted with the facts of the case. The list was not, therefore, in full compliance with the provisions of Section 252(2) and it was the duty of the learned Magistrate to ascertain from the complainant or otherwise the names of all the persons likely to be acquainted with the facts of the case and. to be able to give evidence for the prosecution. Only thus could the duty be performed in all its essentialities as emphasised by the Orissa High Court.
In the peculiar circumstances of the case, it is riot possible to hold that the provisions of Section 252 2) were strictly complied with. The complainant [was, therefore, not debarred from examining fur-her witnesses as 'remaining witnesses' under 256(1).
9. The revision is allowed and the order of the learned Magistrate dated 6-3-1954 is set aside with the direction that he will allow the complainant to examine further witnesses.