EMPEROR Vs. NAGINDAS NAROTTAMDAS GANDHI

JUDGEMENT

(1.) THIS is a reference made by the Sessions Judge of Surat, raising two questions which are of some general importance in relation to the practice in criminal Courts.

(2.) THE first question is : Is it obligatory on the accused under the law to submit a list of defence witnesses before the Court after the whole case of the prosecution is over, that is to say, after the further cross-examination of the prosecution witnesses after the charge and the examination-in-chief and the cross-examination of the remaining prosecution witnesses?

(3.) NOW, the question which the learned Sessions Judge raises is whether at that stage the accused is bound to give a list of the witnesses he proposes to call. Certainly the section does not so provide. Section 257 enacts that if the accused applies to the Magistrate to issue any process compelling the attendance of witnesses the Magistrate shall issue such process, except as therein mentioned. But there is nothing in the Code which enacts that the accused shall be bound to supply a list of the witnesses whom he proposes to call. If he wishes the Court to summon the witnesses, necessarily he must give their names. But if he can produce them in Court without the assistance of the Court, he is entitled to do so. If the prosecution ask for an adjournment in order to enable them to ascertain the antecedents of the witnesses, it is for the Magistrate to determine whether such application should be granted or not. It would not. be desirable to attempt to lay down any rule on that point, which must rest on the discretion of the Magistrate. In my opinion, the view which the learned Sessions Judge has expressed is correct, and the answer to the first question raised is that it is not obligatory on the accused to submit a list of defence witnesses at the stage of the trial reached under Section 256.