NIZAM ALI Vs. WAZIR

JUDGEMENT

(1.) This is a reference by the Temporary Sessions Judge, Muzaffarnagar, with the recommendation that the order of the Magistrate refusing to record the statement of the Kanungo be set aside and the complainant, Nizam Ali, be permitted to examine Udaibir Singh, Kanungo, as his witness.

(2.) The relevant facts of the case are that the opposite parties, namely, the accused persons, put in appearance in the court of the Magistrate on 10-6-57. It was on 24th May, 57 that Nizam Ali, complainant, submitted a list of his witnesses. The hearing was adjourned and on 2-9-57, the evidence of three prosecution witnesses was recorded. The complainant then made a request for the summoning of the Kanungo for giving evidence in the case. The request was allowed and it appears that the Kanungo did put in appearance in court on 9-9-57, but he could not be examined as certain records were not before the court. It was on 23-9-57 that the opposite parties raised an objection that the name of the Kanungo was not mentioned in the list submitted under Section 204(1A), Cr. P. C. and for that reason he could not be examined by the complainant. This objection was allowed and the learned Magistrate declined to record the statement of the Kanungo.

(3.) Section 204(1A) provides that no summons or warrant shall be issued against the accused under Sub-section (1) until a list of the prosecution witnesses has been filed. This clause was incorporated under the Amending Act of 1955. The section does not speak of issue of process for the appearance of witnesses. Section 252(1) Cr. P. C. was also amended, but not Sub-section (2) thereof. The amendments made to Section 252 were of a formal nature to indicate that the provisions contained in this section were applicable to only those cases instituted otherwise than on a police report.