S VIVEKANANTHAM Vs. R VISWANATHAN

JUDGEMENT

(1.) THE interesting question raised in this petition is, whether under Section 244, Criminal Procedure Code, 1973, a complainant in a private complaint can be permitted by a Magistrate to cite additional witnesses and have them summoned and examined in court. The controversy has arisen in the following circumstances.

(2.) THE complainant who is the petitioner herein, has filed a complaint against his son-in-law and certain others for the commission of an offence punishable under Section 494, Indian Penal Code. Initially, he furnished a list of four witnesses in compliance with the requirements of Section 204 (1-A) Criminal Procedure Code. He gave up the examination of two witnesses in that list and later he requested the court to summon ten witnesses and have them examined under Section 311, Criminal Procedure Code. Perhaps realising that the Court may not be interested to summon those persons and examine them as Court witnesses, the petitioner withdrew that petition and filed another petition praying for permission to cite those ten witnesses as additional witnesses on the complainant's side and to have them examined. That application was opposed by the accused who are the respondents herein and the matter was fully argued before the learned Fourth Metropolitan Magistrate. The learned Magistrate overruled the objections of the respondents and ordered summons to be issued to the additional witnesses. Crl. M. P. No. 2007 of 1976 has been filed by the respondents to set aside the order of the learned Magistrate. The present petition is to dismiss Crl. M. P. 2007 of 1976.

(3.) IN support of the respondent's contention, Mr. Arputharaj contends that with the enactment of the new Code of Criminal Procedure, the burden of citing the prosecution witnesses has been thrown entirely on the complainant and as such, the complainant has to file a comprehensive list of all his witnesses under Section 204 (1-A) and he is not entitled to file a supplemental list for examination of additional witnesses. In support of this argument, Mr. Arputharaj points out the difference between Section 252 (2) Crl. P. C. 1898 and Section 244 of the present Code. He also places reliance on the report of the Law Commission which recommended the deletion of Section 252 (2) and casting on the complainant the burden of citing his witnesses and filing a list in that behalf. Under Section 252 (2) a duty was cast on the Magistrate to ascertain from the complainant or otherwise the names of any persons likely to be acquainted with the facts of the case and able to give evidence for the prosecution and then summon those witnesses or such of them as he thought necessary to give evidence before him. The sub-section has been deleted in the new Code and Section 244 provides that on the appearance or production of an accused before a Magistrate in a warrant case instituted otherwise than on a police report, the Magistrate has to proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. Sub-section (2) of Section 244 says that the Magistrate may on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing.