1. The interesting question raised in this petition is, whether under Section 244, Criminal Procedure Code, 1973, a complainant in a private complaint can be permitted by a Magistrate to cite additional witnesses and have them summoned and examined in court. The controversy has arisen in the following circumstances.
2. The complainant who is the petitioner herein, has filed a complaint against his son-in-law and certain others for the commission of an offence punishable under Section 494, Indian Penal Code. Initially, he furnished a list of four witnesses in compliance with the requirements of Section 204(1-A) Criminal Procedure Code. He gave up the examination of two witnesses in that list and later he requested the court to summon ten witnesses and have them examined under Section 311, Criminal Procedure Code. Perhaps realising that the Court may not be interested to summon those persons and examine them as Court witnesses, the petitioner withdrew that petition and filed another petition praying for permission to cite those ten witnesses as additional witnesses on the complainant's side and to have them examined. That application was opposed by the accused who are the respondents herein and the matter was fully argued before the learned Fourth Metropolitan Magistrate. The learned Magistrate overruled the objections of the respondents and ordered summons to be issued to the additional witnesses. Crl.M.P. No. 2007 of 1976 has been filed by the respondents to set aside the order of the learned Magistrate. The present petition is to dismiss Crl.M.P. 2007 of 1976.
3. In support of the respondent's contention, Mr. Arputharaj contends that with the enactment of the new Code of Criminal Procedure, the burden of citing the prosecution witnesses has been thrown entirely on the complainant and as such, the complainant has to file a comprehensive list of all his witnesses under Section 204(1-A) and he is not entitled to file a supplemental list for examination of additional witnesses. In support of this argument, Mr. Arputharaj points out the difference between Section 252(2) Crl. P.C. 1898 and Section 244 of the present Code. He also places reliance on the report of the Law Commission which recommended the deletion of Section 252(2) and casting on the complainant the burden of citing his witnesses and filing a list in that behalf. Under Section 252(2) a duty was cast on the Magistrate to ascertain from the complainant or otherwise the names of any persons likely to be acquainted with the facts of the case and able to give evidence for the prosecution and then summon those witnesses or such of them as he thought necessary to give evidence before him. The sub-section has been deleted in the new Code and Section 244 provides that on the appearance or production of an accused before a Magistrate in a warrant case instituted otherwise than on a police report, the Magistrate has to proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. Sub-section (2) of Section 244 says that the Magistrate may on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing.
4. The Law Commission of India gave its reasons for the deletion of Section 252(2) occurring in the old Code in the following terms:
In Section 252(1) we propse to substitute for the words 'complainant (if any)' the word 'prosecution', and to omit the proviso which will be rendered unnecessary by the amendment.
Section 252(2) appears to throw on the Magistrate the responsibility of ascertaining the names of any persons likely to be acquainted with the case and to summon such of them as he considers necessary. This would appear to be both unnecessary and undesirable when the case has been instituted on complaint whether by a private individual or by a public servant. In those cases the complainant would have already furnished a list of prosecution witnesses under Section 204(1-A). Even, in the rare cases where cognizance was taken under Section 190(1)(c) there would be somebody prosecuting the case who should be in a position to give a list of witnesses. Subsection (2) in its present form does not appear to be necessary and in its place we may have a sub-section as follows:
(2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing. This will bring Section 252(2) into line with Section 251-A(6) as proposed to be amended.
Reliance is also placed on State of Bombay v. Janardhan : (1960)62BOMLR494 , where the question for consideration was somewhat different than the one on hand. The issue in that case was whether after the introduction of new Section 204(1-A), other sections of the Criminal Procedure Code and in particular Section 256 have to be read along with Section 204(1-A). The learned single Judge of the Bombay High Court who decided that case held that the words 'any remaining witnesses' occurring in Section 256 have to be read in. conjunction with the provisions contained in Section 204(1-A) and, therefore, the complainant was not entitled to examine witnesses not named in the original list.
5. On a consideration of the matter, I find that the arguments of Mr. Arputharaj cannot be accepted. In the first instance, Section 244 is wide enough to give power to a court to accept a supplemental or additional list of witnesses given by a complainant and to issue summons to them and record their evidence. All that the section says is that.. the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution.
Nowhere the section lays down that the complainant will not be entitled to file a supplemental list of witnesses nor the Court empowered to entertain such a list and examine one or more of the witnesses cited therein. Though Section 204(2) of the new Code prescribes 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, that cannot be taken to mean that a complainant is irretrievably chained to the first list of witnesses filed by him and he cannot seek the permission of the court to examine additional witnesses even where circumstances or interests of justice warrant such examination. The recommendation of the Law Commission referred to by Mr. Arputharaj has no relevancy to the controversy on hand. What the Law Commission said was that since it was enjoined on a complainant in a private complaint to file a list of his witnesses under Section 204(1-A), the Magistrate need not be burdened with the task of ascertaining the names of the witnesses of the complainant and such a direction contained in Section 252(2) (old Code) was really superfluous and redundant. The removal of the obligation cast on the Magistrate to ascertain the names of witnesses from a complainant has nothing to do with the right of a complainant to seek the permission of the court to examine, in private cases, additional witnesses on behalf of the prosecution. A Division Bench of this Court has considered in Somasundaram v. Gopal : (1958)IMLJ390 , the right of a complainant to file a supplemental list of witnesses vis-a-vis the direction given to the complainant under Section 204(1-A) to file a list of his witnesses before asking for process to be issued by the court. The headnote which correctly represents the view of the Bench runs as follows:
It is no doubt true that Section 204(1-A), Criminal Procedure Code, as amended recently, provides that no summons or warrant shall be issued against an accused under Section 204(1) until a list of prosecution witnesses has been filed. But it does not prohibit any variation of the list. Of course, the list of witnesses required to be filed would be a bona fide complete list of witnesses so far known or considered by the complainant as necessary for his case. It cannot be a mere nominal list. But in addition to the list initially filed under Section 204(1-A), a complainant can file supplemental list of witnesses'. The Bench further held that such supplemental list can be in addition to all the witnesses in the preliminary list filed by the complainant under Section 204(1-A) of the Criminal Procedure Code or in addition only to such of the witnesses in the preliminary list whom he desires to examine. In my opinion, the ratio in this case will contiune to govern the situation in spite of the modification made to Section 252 of the old Code and the enactment of the same now as Section 244. I may incidentally point out that even in State of Bombay v. Janardhan : (1960)62BOMLR494 , relied on by Mr. Arputharaj, the learned single Judge has held that it is not stated in Section 204(1-A) that the list given thereunder cannot be added to with the permission of the court. If the contentions of Mr. Arputharaj are to be accepted, then it would not only be unduly narrowing the scope of Section 244, Criminal Procedure Code, but would actually lead to grave injustice and hardship to the complainants. There may be several cases where the complainants may not be able to know the names of all the witnesses they should examine or on what all matters evidence should be adduced. The names of some of the witnesses may come to be known during the course of the trial. Likewise, the necessity to examine certain witnesses may also arise in view of the trend of the cross-examination in the case. As a matter of fact, in the instant case it appears that at one stage the complainant stated that he was not going to let in any evidence to prove the marriage of his daughter with the first respondent. Presumably, due to certain questions put in cross-examination repudiating the validity of that marriage, the complainant seems to have felt the necessity to examine some witnesses to prove the factum of marriage. It must, therefore, be held that to give a fettered or restricted meaning to Section 244, Criminal Procedure Code, will defeat the very ends of justice and it could never have been the intention of the Parliament to curtail the rights of complainants in private cases in such a manner.
6. Mr. Arputharaj would then contend that the filing of a supplemental list by the complainant is totally at variance with some of the answers given in cross-examination. This is a matter which has no bearing on the legal question raised in the proceedings before this Court. It is a matter for the trial Magistrate to go into and find out whether the request for examination of additional witnesses by the complainant is a justified one or whether the request has been made to drag on the proceedings or for frivolous reasons.
7. For the reasons stated above, the request of the complainant for dismissing Crl.M.P. 2007 of 1976 is well founded. Consequently, this petition will stand allowed and Crl.M.P. 2007 of 1976 will stand dismissed. The interim stay granted in Crl.M.P. 2008 of 1976 will stand vacated.