1. This is a petition to revise the order of the Sub-Divisional Magistrate of Calicut refusing the petitioner's petition to summon certain witnesses for the prosecution. The petitioner is prosecuting the accused for offences under Section 477(a) of the Indian Penal Code and Section 282 of the Indian Companies Act for concocting false balance sheets, when he was the Managing Director of the Manorama Printing Works in 1921 and 1922, in particular for showing an inflated and false value of the stock in hand, and including in the Company's stock the full value of books only sent to them for sale on commission. The petitioner filed his complaint on 3rd November, 1925, naming three witnesses. At that time the books-of the Company had been impounded and were in the lower Court. His witnesses were examined on 23rd and 24th November, 1923 and cross examined on 5th and 6th December 1925. The petitioner put in a further list of four witnesses styled 'Experts in valuation' and the Magistrate examined these on 12th December, 1925, and 19th December, 1925. On 17th December, 1925, the petitioner put in a further list of witnesses stating that he got further information about the inclusion in the stock list of books which never belonged to the Company and were not in its possession, some of which the petitioner had secured. The lower Court refused to summon these on the ground that it was new matter, and the petitioner has put in this revision petition.
2. His chief point is that at the stage which the case has reached the Magistrate has no option to refuse to examine witnesses cited by him, and he relies on Section 252 of the Cr.P.C., That Section lays down that not only shall the Magistrate take all the evidence which may be produced in support of the prosecution but shall himself ascertain the names of other persons able to give evidence for the prosecution and summon such of the latter as he thinks necessary. In the present case the new list of witnesses is one offered by the complainant himself, just as his previous list of ex pert witnesses was offered, sometime after the complaint was filed and after the trial had begun. What then is the proper attitude for the Court to take up regarding such a list? The Section does not appear to me to be very clear on the point; but, as I read it, it means first that the complainant should himself produce what evidence he can in support of the prosecution and the Magistrate shall proceed to hear it. The Court is apparently not bound to issue process for such witnesses, or to grant time for the production of such witnesses, but if produced he must record their evidence. There is no Section here corresponding to Section 208(3) in the case of committal proceedings or Section 244(2) in the case of trial in summons cases. This is a remarkable omission as otherwise the language 'shall take all such evidence as may be produced in support of the prosecution' is the same in all three Sections; and Section 257 gives the accused the power of asking the Magistrate to issue compulsory process, while Section 252 itself gives the Magistrate power to summon persons whom he has himself ascertained to be acquainted with the facts of the case. Next when the complainant has done all he can without the assistance of the process of the Court, it is then for the Magistrate to ascertain from the complainant or otherwise the names of other persons likely or able to give evidence, and he must summon such of those as he thinks necessary, i.e., such of those as he thinks will be of value in assisting the prosecution case. He cannot, I take it, arbitrarily refuse to summon such witnesses. It is his duty to assist and not to hamper the prosecution, and for that purpose he must issue summons to persons of whom complainant has informed him, who he considers, are likely to give useful evidence. Obviously I take it that the Magistrate is not bound to or expected to exercise this duty of ascertaining more than once, and the proper time is when the evidence 'produced' in support of the prosecution has been taken, and that ordinarily includes the cross-examination, if any, and re-examination, if any, before the charge. See In re Varisai Rowther M.L.J. 567: (1923) M.W.N. 477 : A.I.R. 1923 Mad. 609.
3. Now I find from the Magistrate's order that though he asked the complainant after the examination-in-chief of his original witnesses, whether he had any more witnesses to examine, he did not and has not yet asked him that question after the examination of the original witnesses was over nor was a question put in the proper form. The question to be asked is not whether complainant has any more witnesses whom he can produce without summons, but whether he can inform the Court of any witnesses who will have to be brought by process. The Magistrate has, therefore, in my view not complied with the law. The stage of examining the original witnesses produced by the complainant is over. But still the Court has to ascertain from the complainant whether there are any other persons able to give evidence in support of the prosecution. The Court must remedy this defect and must do so now.
4. As to whether the petitioner has traversed new grounds the consideration of that matter seems to me not at all a matter of procedure on which I can at this stage be properly called upon to give a decision. The discretion to summon or not to summon lies with the Magistrate. But he is not to interpret that discretion in a narrow or purely technical sense. He must look at the prosecution case broadly, decide what are the broad allegations of facts on which the complaint is founded and then determine whether the evidence offered is not necessary to assist in the establishment of that case. A useful test will be whether, if the accused were acquitted in this case, it would be open to the complainant to put in a fresh complaint on the facts now put forward.
5. I set aside the order and direct that the petition be re-heard in the light of the above remarks.