STATE OF MYSORE Vs. BABASAHEB SYADSAHEB SHETSANADI

JUDGEMENT

(1.) This is a reference made under Section 438 of the Code of Criminal Procedure by the Sessions Judge, Dharwar, in Criminal Application No. 4 of 1958 on his file for orders of this Court.

(2.) The circumstances that led to the reference briefly narrated are as follows : The first respondent Baba Saheb Syad Saheb Shetsanadhi filed a complaint against respondents 2 to 4 for offences under Sections 426 and 447 of the Indian Penal Code in the Court of the Judicial Magistrate, First Class. If Court, Dharwar in Criminal Case No. 499 of 1957. The learned Magistrate recorded the evidence of the two witnesses cited in the complaint petition and framed charges against respondents 2 to 4 under Sections 426 and 447 of the Indian Penal Code and examined the accused. He subsequently permitted the accused to cross-examine the two witnesses who had been examined prior to the charge.

(3.) The opinion of the learned Magistrate that the words "any remaining witnesses" in Section 256 (1) of the Code of Criminal Procedure do not refer to the witnesses, who had not been cited by the complainant in his complaint petition is not correct. The words, in my opinion, are wide enough to include any witness who according to the first respondent is able to give evidence in support of his case. It is no doubt true that the first respondent had not given the names of those two witnesses in the list of witnesses cited by him in his complaint petition but the fact remains that the accused had not been called upon to enter their defence and therefore, no injury or prejudice was likely to be caused to respondents 2 to 4 if the witnesses named by the first respondent in his application filed on 6-2-1958 were summoned and examined in the case. It was not a case wherein the first respondent was likely to spring a surprise upon the defence all of a sudden. Respondents 2 to 4 had every opportunity to prepare for the cross-examination of these witnesses. The order passed by the learned Magistrate rejecting the application on the ground that the first respondent was not entitled to summon and examine any witness that he had not cited in his complaint or included in the list filed by him under Section 252 (2) of the Code of Criminal Procedure is illegal and cannot be supported. In the circumstances of the case the reference made by the learned Sessions Judge, Dharwar, is accepted. The order passed by the learned Judicial Magistrate, First Class, II Court Dharwar, directing the application filed by the first respondent for summoning the two witnesses is set aside. The learn ed Magistrate is directed to issue summons to the witnesses cited by the first respondent and examine them before calling upon the accused to enter upon their defence.