N.C. Talukdar, J.
1. This rule must be made absolute. The rule is against an order datedthe 22nd August, 1968 passed by Shri S.R. Bhowmick, Presidency Magistrate, 7th Court, Calcutta in Case No. 1728 of 1967 rejecting the petition of the accused-petitioner praying that the order dated the 12th August, 1968 passed by the Court previously allowing the complainant opposite party to examine Sm. Bani Ghosal or her husband as a remaining witness under Section 256 of the Code of Criminal Procedure, may be set aside.
2. A petition of complaint was filed Under Sections 417, 420 and 406 of the Indian Penal Code by the complainant-opposite party who is a practising pleader in the City Civil Court at Calcutta against the accused-petitioner in the Court of the Chief Presidency Magistrate at Calcutta and a process was issued under Section 420, I. P. C. against the accused and the case was transferred to the Court of Shri S.R. Bhowmick, Presidency Magistrate, 7th Court, Calcutta. In the petition of complaint seven witnesses were mentioned but in the list neither Sm. Bani Ghoshal nor her husband finds place. The proceedings went on thereafter and five witnesses were examined, viz. Kshitin, Hemanta, Ashoka, Gokul and Nutbehari and the prosecution did not proceed to examine the other witnesses as mentioned in the said list. A charge was framed under Section 420, I. P. C. by the trying magistrate and the plea of the accused was taken. Cross-examination took place thereafter of the said five witnesses and they were discharged. At this stage an application was filed on behalf of the prosecution for examining Sm. Bani Ghoshal or her husband as a remaining witness within the meaning of Section 256 of the Code of Criminal Procedure. The trying magistrate by his order dated the 12th August, 1968 overruled the objection made on behalf of the accused-petitioner and allowed the prayer made on behalf of the complainant. An application was filed thereafter on the 16th August, 1968 by the accused-petitioner praying that this order should be set aside and the prayer of the prosecution for examining Sm. Bani Ghoshal or her husband or any other witness as the remaining witness should be disallowed. The said petition filed on behalf of the accused was rejected by the trying magistrate by his order dated the 22nd August, 1968. This order has been impugned and forms the subject-matter of the present Rule.
3. Mr. Arun Kishore Das Gupta, Advocate appearing in support of the Rule, has submitted that the order passed by the trying magistrate allowing Sm. Bani Ghoshal or her husband to be examined as a remaining witness is an order which is not enjoined by law. Mr. Das Gupta has submitted in this context that some meaning must be given to the expression remaining witnesses' as used in Section 256,Criminal P. C. and that on a proper interpretation the said expression means witnesses who were originally included in the list submitted under Section 252 (2). Criminal P. C. but not subsequently examined. This is what a remaining witness is. Mr. Monohar Saha, Advocate appearing on behalf of the complainant-opposite party, opposed the Rule and submitted that this would be putting a too narrow construction on the expression 'remaining witness' as used in Section 256, Criminal P. C. He further submitted that it is expedient in the interest of justice that the said witnesses should be examined as remaining witnesses as otherwise the prosecution would be prejudiced in establishing its case. Mr. Dwijendra Narayan Ghosh, Advocate appearing on behalf of the State, has supported the Rule and has submitted that upon a proper construction a remaining witness means a witness who remains to be examined, out of the list as submitted by the prosecution ,under Section 252 (2), Cr. P. C.
4. Having heard the arguments of the learned Advocates appearing on behalf of the respective parties and on going through the record, I hold that there is a considerable force behind the submission made by Mr. Arun Kishore Das Gupta. The expression 'remaining witness' as used in Section 256, Criminal P. C. should not be given an unnecessarily wide interpretation. A list of witnesses was given under Section 204 (1-A) and that included seven names. The two witnesses sought to be examined by the prosecution as 'remaining witnesses', on the ground that their names appear from the Bainanamah which was put in later on, are not witnesses as mentioned in the list of witnesses submitted by the prosecution to the Magistrate along with the complaint but two other persons. The point at issue has been decided by a series of decisions of this Court and I would refer in this connection to an unreported decision in the case of Bhakta Malik v. The King, in Cri. Revn, Case No. 185 of 1949, D/-13-5-1949 (Cal). Harries, C. J. and J. P. Mitter, J. were pleased to hold therein as follows:
'It is clear that the balance of authority is in favour of the view put forward by Mr. Dutta that the phrase 'remaining witnesses for the prosecution' means any witness for the prosecution who had not been examined before the charge-sheet was framed, but whose names were on the list of witnesses submitted to the Magistrate under Section 252 (2) of the Code and summoned by the latter before the charge was framed.'
Their Lordships ultimately proceeded to hold that:
'The remaining witnesses must be witnesses who were on some list or who hadbeen dealt with in some way and who had not been called before the charge was framed.'
There is undoubtedly a conflict of decisions on the point and there are various decisions of the different High Courts bearing on the same. I respectfully agree with the view expressed in the aforesaid unreported decision of this Court and I hold that the order that was passed by the trying Magistrate in allowing Sm. Bani Ghoshal or her husband as a remaining witness on behalf of the prosecution is an order which is unsustainable and improper. The complainant has alternative remedies under the Code and upon prayers made on behalf of the prosecution, the same can be considered on merits. The impugned order, however. Is not an order which ultimately is maintainable either in law or on merits.
5. In the result, I make the Rule absolute; set aside the impugned order dated the 22nd August, 1968 as also the order dated the 12th August, 1968 passed by Shri S.R. Bhowmick Presidency Magistrate, 7th Court, Calcutta in case No. 1728 of 1967; and I direct that the case is to go back to the Court below for being tried in accordance with law and expeditiously.
6. The records are to go down as soonas possible.