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Case Number
Attorney(S)
  • Mr. K. Arunachala Sastri for the Petr.
  • Mr. Rangavajjulu and Krishnamurthi for the accused.
  • The Public Prosecutor for the State.
Judges
  • Panehapakesa Ayyar
  • Basheer Ahmed Sayeed, JJ.
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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Mr. K. Arunachala Sastri for the Petr.
  • Mr. Rangavajjulu and Krishnamurthi for the accused.
  • The Public Prosecutor for the State.
Judges
  • Panehapakesa Ayyar
  • Basheer Ahmed Sayeed, JJ.
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Smart Summary

Judgment Summary (Delivered by Panshapakesha Ayyar, J.)

Factual and Procedural Background

The Chief Justice directed the case to be posted before this Bench on the recommendation of Ramaswami J. because of an apparent conflict among several prior judgments: Somasundaram J.'s decision in Ramanatha v. State, a Bench judgment in Tirumal Thevar v. State, Ramaswami J.'s judgment in Arumugam Solathirayar v. Ponnalagu Pandrar, and a Supreme Court judgment in Narayana Rao v. State of Andhra Pradesh that bore indirectly on the questions. After the reference, Somasundaram J. modified his earlier view (in Crl. R. G. Nos. 405 to 407 of 1957), aligning with other rulings; thus the Bench found no real conflict but proceeded to answer three specific questions referred to it.

The controversy arose from an order of the Special Honorary Presidency Magistrate, Egmore, Madras, who held that he had no power to examine any witness other than those named by the complainant in the list filed under S. 204(1) Criminal Procedure Code, and on that basis declined to examine additional witnesses named in a supplemental list which he had already summoned.

Legal Issues Presented

  1. Whether a private complainant in a summons or warrant case who has filed a list of prosecution witnesses under S. 204(1-A) Crl.P.C. may file a supplemental list of witnesses later on (either giving up some or all of the witnesses in the first list or in addition to them), and whether the Court can summon and examine such supplemental witnesses if it thinks fit.
  2. Whether a complainant can give up some or all of the witnesses cited in the first list filed under S. 204(1) Crl.P.C.
  3. Whether the Magistrate must apply his mind before issuing summons to witnesses in a supplemental list or must automatically issue summons without discretion, and whether notice of supplemental lists should be sent to the accused.

Arguments of the Parties

Learned Public Prosecutor

  • Contended that no complainant can be compelled to examine all the witnesses cited in his list filed under S. 204(1) Crl.P.C.; the complainant should be free to dispense with evidence of witnesses who have become unnecessary or hostile.

Learned Counsel for the Complainant

  • Contended (as recorded) that the Magistrate has no right at all to apply his mind when asked to summon fresh witnesses (i.e., argued against Magistrate exercising discretion in that respect).

Learned Counsel for the Accused

  • Contended (as recorded) that the Magistrate has no right to summon any additional witness even after applying his mind.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Ramanatha v. State(1) (judgment of Somasundaram J.) Earlier view that conflicted with other rulings about court's discretion to summon witnesses not named in the initial S. 204(1-A) list. The Court records that Somasundaram J. has modified his original view (in later unreported judgment) and practically fell into line with other rulings; therefore there is no longer a real conflict with respect to the questions in the case.
Tirumal Thevar v. State(2) One of the Bench judgments forming part of the earlier conflicting authorities on the legal questions raised. Used as part of the body of rulings that align to support the proposition that courts have discretion to summon witnesses not in the original list.
Arumugam Solathirayar v. Ponnalagu Pandrar(3) (judgment of Ramaswami J.) Another judgment cited among those bearing on the discretion to summon additional witnesses under the procedure. Counted among the authorities indicating the Court has discretion to summon witnesses not named in the original list; formed basis for referring the matter to this Bench.
Narayana Rao v. State of Andhra Pradesh(4) (Supreme Court judgment) Supreme Court observations indirectly bearing on the questions of discretion to summon additional witnesses and related procedure. The Bench considered those observations relevant; they contributed to Somasundaram J.'s modification and to the conclusion that no real conflict now exists.
Crl. R. G. Nos. 405 to 407 of 1957 (judgment delivered on 21st November 1957 — unreported) (by Somasundaram J.) Refers to Somasundaram J.'s own later judgment in which he altered his earlier stance. Noted by the Court as demonstrating that Somasundaram J. fell in line with other rulings holding the Court has discretion to summon witnesses not named originally.
Ali Jan… v. Amir Khan…Opposite Party. (Calcutta High Court) Authority for the distinction between the Court's power to examine a witness and the credibility or weight of that witness's evidence. Cited to show that the power to examine supplemental witnesses is distinct from assessing their credibility; the Court may test supplemental witnesses more severely but that is a credibility question, not one of power to summon.

Court's Reasoning and Analysis

The Bench addressed each of the three referred questions sequentially.

1. On filing supplemental lists and the Court's power to summon: The Court held that a complainant who has filed a list under S. 204(1-A) may file supplemental (or further) lists of prosecution witnesses. The Court relied on the language of substantive provisions — specifically the phrases "take all such evidence as may be produced in support of the prosecution" in S. 244(1), S. 244(2), and S. 252(2) Crl.P.C. — to show the ample powers of the Court to receive and consider evidence. S. 204(1-A) merely requires a list be filed before the issue of summons or warrant; it does not require communication of that list to the accused, nor does it prohibit addition or variation of the list. The Court qualified, however, that the original list must be bona fide — i.e., not a mere nominal list — representing witnesses then known and considered necessary by the complainant.

2. On the complainant giving up witnesses from the original list: The Court accepted the Public Prosecutor's contention that a complainant cannot be compelled to examine all witnesses named in the S. 204(1) list. A complainant may dispense with witnesses who later become hostile or are found unnecessary, including giving up some or all of the original witnesses. The Court observed that the Magistrate will note such abandonment and may draw an inference against the complainant if the giving up appears mala fide.

3. On the Magistrate's duty and notice to the accused: When a Magistrate is asked to summon fresh witnesses, he must apply his mind to the application and exercise discretion. That duty includes weeding out obviously frivolous names (the Court gave examples such as the Prime Minister, President, or the accused's wife). The Court rejected both extremes recorded in the submissions: (a) that the Magistrate has no right at all to apply his mind (as contended by counsel for the complainant), and (b) that the Magistrate has no right to summon any additional witness even after applying his mind (as contended by counsel for the accused). The Court further held that before the Magistrate applies his mind to an additional list, no notice to the accused of that supplemental list is required — the position is the same as with the original list under S. 204(1) Crl.P.C.

On the question of credibility, the Court emphasized (following Ali Jan…) that the power to examine and the credibility of evidence are distinct matters: although the Court can summon and examine supplemental witnesses, their credibility and weight remain open to stricter testing.

Holding and Implications

HOLDING: The Court held that (a) a complainant may file supplemental lists of prosecution witnesses after filing a list under S. 204(1-A) Crl.P.C.; (b) the complainant may give up some or all witnesses from the original list; and (c) the Magistrate must apply his mind when asked to summon additional witnesses and may refuse to summon obviously frivolous witnesses. Before applying his mind to supplemental lists, the Magistrate need not first give notice of those lists to the accused. The Court further held that the order of the Special Honorary Presidency Magistrate, Egmore, declining to examine additional witnesses on the ground that he had no power to examine any witness other than those in the original list, was incorrect. The Magistrate was directed to proceed to examine the additional witnesses already summoned and to dispose of the case according to law.

Implications: The direct effect is that complainants may supplement or prune their witness lists and Magistrates retain discretion to assess applications to summon additional witnesses, including rejecting frivolous names; the issue of the credibility of supplemental witnesses remains for trial assessment. The opinion records that there is "no real conflict" among the earlier authorities now (in part because of Somasundaram J.'s modification), and the Bench answered the referred questions without purporting to set a novel broader precedent beyond applying and reconciling existing authority.

Order: The Special Honorary Magistrate is to examine the additional witnesses he had summoned and dispose of the matter according to law.

Show full summary ...

    K. Somasundaram v. Gopal And Another.

    (Delivered by Panshapakesha Ayyar, J.)

    This case was directed by the Hon'ble the Chief Justice to be posted before a Bench en the recommendation of Ramaswami J. that a Bench should hear and dispose of the matter in view of the then existing conflict regarding the legal questions involved in the case between the judgment of Somasundaram J. in Ramanatha v. State(1), and a judgment of a Bench of this Court in Tirumal Thevar v. State(2), and the judgment of Ramaswami J. in Arumugam Solathirayar v. Ponnalagu Pandrar(3), and the Supreme Court judgment indirectly bearing on the question in Narayana Rao v. State of Andhra Pradesh(4). Since the reference was made to this Bench, as the learned Public Prosecutor has urged, Somasundaram J. has, in view of the observations of the Supreme Court in the judgment cited above, modified his original view, in Crl. R. G. Nos. 405 to 407 of 1957, the judgment in which was delivered on 21st November 1957 but it remains unreported till now. In his judgment, Somasundaram J. practically fell into line with the other rulings cited above which have held that the Court has got a discretion to summon witnesses not named in the list filed under S. 204 (I-A), Crl.P.C So, at present, there is no real conflict regarding any of the three questions which arise in this case. Still, as a reference has been made to this Bench we shall answer the three questions.

    The first question is whether a private complainant in a summons or warrant case, who has filed a list of prosecution witnesses under S. 204 (I-A), can file a supplemental list of witnesses later on, after giving up some or all the witnesses in the first list or in addition to them, and whether the Court can summon and examine them if it thinks fit. The second question is whether he can give up some or all of the witnesses cited in the first list, tiled under S. 204 (1) Crl.P.C, and the third question is whether the Magistrate should apply his mind and direct issue of summons to the witnesses in the supplemental list, or whether he should automatically do so, without using his discretion whether to summon them or not, and whether notice should go to the accused with the list of witnesses named in the supplemental lists.

    As the law stands at present, there is no conflict in this respect. The answer to the first question will be that the complainant can file a suplemental list or even a third list etc., of prosecution witnesses, though he has filed a list of prosecution witnesses under S. 204 (I-A) for the purpose of having summons or warrant issued against the accused. The phrase “take all such evidence as may be produced in support of the prosecution” in. S. 244 (1), and S. 244 (2) and S. 252 (2), Crl P. C., shows the ample powers of the Court in this respect. S. 204 (I-A) simply says that no summons or warrant shall be issued against the accused under S. 204 (1) until a list of prosecution witnesses has been filed. It does not say that that list should be communicated to the accused. Nor does it say that that list shall not be added to or varied from. Of course, it must be taken that the list filed under S. 204 (I-A) Crl. P. C., is not a mere nominal list, filed just for securing issue of summons or warrant against the accused, but is a bona fide list of witnesses so far known to the complainant and considered by him then as necessary for supporting the case he has set out in his complaint. It is, therefore, clear that the list filed under S. 204 (1-A) can be added to by supplemental lists accompanied by applications to the Court to summon those new witnesses. Such supplemental lists can be in addition to all the witnesses in the primary list filed by the complainant under S. 204 (1) Crl. P. C., or in addition only to such of the witnesses in the primary list whom he decides to examine.

    The second question is also easy to answer. As the learned Public Prosecutor contended, no complainant can be compelled to examine all the witnesses cited in his list filed under S. 204 (1) and it must be left to the complainant to dispense with the evidence of these gained over or unnecessary and to examine only the rest. It often happens that some of the witnesses whom the complainant has cited in the list filed under S. 204 (I-A) may turn hostile, or some of them may be found, on later reflection, to be unnecessary, so the complainant can dispense with these and examine the rest in support of the prosecution. He may thus give up some or all of the witnesses in the original list. Of course, the Court will advert to his giving up the witnesses mentioned in the original list, and draw an inference against him if such giving up has been, in its opinion, mala fide.

    The third question can also be answered easily. When the Magistrate is asked to summon fresh witnesses, he must certainly apply his mind to the application, and has a duty to do so. For one thing he must weed out obviously frivolous names. Thus, if the complainant frivolously summons the Prime Minister of India or the President of the Indian Republic, or the accused's wife, as supplemental witnesses the Magistrate may refuse to summon them. It is not a case where the Magistrate has no right at all to apply his mind, as contended for by the learned Counsel for the complainant or where the Magistrate has no right to summon any additional witness, even after applying his mind, as contended by the learned Counsel for the accused. Before the Court applies its mind about summoning the witnesses named in the additional list filed, no notice of the list of the additional witnesses need go to the accused (and the accused heard about it) any more than in the case of the list originally filed under S. 204 (1) Crl. P. C.

    It follows from all this that the order of the Special Honorary Presidency Magistrate, Egmore, Madras, holding that he had no power to examine any witness other than those named by the complainant in the list filed under S. 204 (1) Crl.P.C, and, therefore, declining to examine any of the additional witnesses named in the supplemental list and already summoned by him, is not correct. Of course, the credibility, or weight, of the evidence of the witnesses named in the supplemental list and examined is a different matter. As held by the Calcutta High Court in Ali Jan… v. Amir Khan…Opposite Party., the credibility of the evidence of the witness examined before a Magistrate is quite different from the Court's power to examine him. The question of credibility of the witnesses will arise not only with reference to the additional witnesses in the supplemental list, but also with reference to the primary witnesses in the original list filed under S. 204 (1) Crl. P. C. though, of course, there will be a greater inclination on the part of the Court to test the evidence of supplemental witnesses more severely, as they were not included in the original list.

    The Special Honorary Magistrate will proceed to examine the additional witnesses summoned by him, and dispose of the case according to law in due course.

    V.C.S

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    Comments

    K. Somasundaram v. Gopal And Another.
    (Jan 27, 1958)