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