1. This is an appeal by one Kali Bilash Hazra who has been convicted by the unanimous verdict of the jury under Section 471, I.P.C., and sentenced to two years' rigorous imprisonment. There was also a charge under Section 193, I.P.C., in respect of which the accused was found by the unanimous verdict of the jury to be not guilty.
2. The only point which has been taken on behalf of the appellant is that the learned Additional Sessions Judge was in error in not allowing the accused further opportunity to examine two witnesses named Hari Das Banerji and Rai Rakhal Mandal, who were alleged to have been material witnesses for the purpose of the defence, and who, though duly summoned by the Magistrate, had failed to attend the Sessions Court on the date fixed for the hearing of the case. The relevant sections of the Code of Criminal Procedure are Sections 211 and 291. Section 211 is as follows:
(1) The accused shall be required at once to give in, orally or in writing, a list of the persons (if any) whom he wishes to be summoned to give evidence on his trial. (2) The Magistrate may, in his discretion, allow the accused to give in any further list of witnesses at a subsequent time etc.
3. Section 291 lays down:
The accused shall be allowed to examine any witness not previously named by him, if such witness is in attendance; but he shall not, except as provided in Sections 211 and 231, be entitled of right to have any witness summoned, other than the witnesses named in the list delivered to the Magistrate by whom he was committed for trial.
4. Section 231 referred to herein has no application in this case.
5. There can be no doubt I think that, an accused, who has complied with the requirements of Section 211 of the Code, and has put in at once his list of defence witnesses, is entitled as of right to have the attendance of those witnesses at the Sessions trial enforced in the event of their ignoring, or failing to comply with the summons. When processes have been issued by the Court it is the duty of the Court to enforce them. Now in the present case the facts relating to the summoning of these witnesses are these : The commitment order was passed on 7th July. It was the duty of the defence, as required by Section 211, to at once file the list of witnesses who were required to be summoned to attend in the Sessions Court. The list of defence witnesses was, however, as the record shows, filed on 10th July and summonses were duly issued. The trial commenced in the Sessions Court on 7th January and upon that date an application was made to the Court drawing attention to the fact that two of the defence witnesses namely Hari Das Banerji and Rai Rakhal Mandal were not present and asking that they might be summoned if necessary by an urgent telegram. The Additional Sessions Judge thereupon directed the prosecution to take necessary steps in the matter and a telegram was sent. On the following day 8th January these witnesses were not in attendance, and another application was filed on behalf of the defence asking that their attendance might be enforced and alleging that the accused would otherwise be prejudiced. It appears that two other-witnesses were present on that day and the Additional Sessions Judge directed that the accused might examine those two witnesses, but they were not examined by the defence and the trial was concluded without any evidence for the defence being recorded.
6. On behalf of the Crown it is contended in the first place that the list which was filed by the accused on 10th July was not a list in respect of which he was entitled as of right to ask the Court to enforce the attendance of the witnesses; and secondly it is urged that these two witnesses, upon whose attendance so much stress has been laid, were not material witnesses, and that therefore the appeal ought not to be entertained.
7. With regard to the first point it seems clear from Section 211 that it is ordinarily incumbent on the accused to put in his list of defence witnesses at once, that is to say on the day when the order of commitment is made and that if he does not do so the Magistrate will have a discretion to allow or not to allow any such application if it is made on any subsequent date. If, however, such an application is made and is allowed, then the application whether under Sub-section (1) or Sub-section (2) will be governed by the same principle. The learned Additional Sessions Judge having exercised his discretion and issued summonses on the defence witnesses mentioned in the list of 10th July was in my judgment bound to enforce the attendance of these witnesses who were in contempt. I do not therefore think that there is any substance in the first contention.
8. The second ground, however, is to my mind of greater importance. The question is whether these two witnesses Hari Das Banerji and Rai Rakhal were really witnesses of material importance in the case, whether the accused has been prejudiced by the omission to examine them, and whether the appeal should be allowed on that ground. It is very difficult to ascertain anything definite or tangible from the record to show that these witnesses were in any sense important witnesses for the purpose of the defence. The accused in his statement in the committing Court said nothing about them. Speaking for myself I do not attach much importance to that fact because I do not consider that the accused is under any obligation to indicate the nature of the defence which he is going to make in the Sessions. Court. Indeed there may be very good reasons why he should prefer not to do so. But when we come to the Sessions Court the position is somewhat different. He there again made a statement and. again there was no reference whatever to these two witnesses. It might per. haps be reasonably expected that he would then say that he had paid the money to the complainant, and that he had done so in the presence of these two persons.
9. But there is another circumstance even more important in connexion with this aspect of the case, and it is this - that in the previous civil suit the accused made a definite statement, which has been proved in this case and has been marked as Ex. 5, in which he stated that he paid this sum of Rs. 135 to the decree-holder, that is to say the complainant in this case and obtained a receipt, and in cross-examination ho further stated that when he paid the money to the decree-holder, the decree-holder, his brother, and son were present. No mention whatever was made in that statement of these two persons Hari Das and Rai Rakhal, and if these two persons were present when the money was paid it seems to be in conceivable that no mention would be made of the fact. If therefore we allow this appeal and send the cage back for retrial, the accused would be confronted with the statement which he made at the trial of the civil suit and it would necessarily be very difficult to accept the evidence of these witnesses even if it supported the accused in the face of that statement previously made by the accused himself. Having regard to all these facts we are not satisfied that these two persons are material witnesses and that we should be justified in setting aside the conviction and sentence upon the ground which has been urged before us.
10. The appeal therefore fails and the conviction and sentence are affirmed. The appellant will surrender to his bail and serve out the remainder of his sentence.
11. I agree.