IN RE: VADLAMUDI KUTUMBA RAO Vs. STATE

JUDGEMENT

(1.) This is a petition by the 1st accused in a preliminary inquiry case, P.R.C. No. 2 of 1955 on the file of the Additional First Class Magistrate, Bandar, to revise the order of the Magistrate dismissing an application made by the petitioner and his co-accused under Section 540, Criminal Procedure Code. The application was for summoning and examining as Court witnesses ten persons, who had been cited as direct witnesses in the police charge-sheet and who had been given up by the Assistant Public Prosecutor at the inquiry. It appears that the Assistant Public Prosecutor gave them up on the ground, that they turned hostile. But it was alleged in the application that they were given up with an oblique motive and that they were more important direct witnesses than those actually examined by the prosecution, almost all of whom were interested as they belong to the Kamma community. The Magistrate dismissed the application on the ground that the accused ought to examine the ten persons as defence witnesses.

(2.) The preliminary inquiry in this case is governed by the provisions of the Criminal Procedure Code prior to the Amendment Act XXVI of 1955. The learned Counsel for the petitioner contends that it was the duty of the prosecution to have examined all the direct witnesses cited in the charge-sheet, that in any event, it was the duty of the Court to do so under the provisions of Section 540, Criminal Procedure Code and that it is unjust to expect the defence to call on their side prosecution witnesses on the mere representation of the Assistant Public Prosecutor that they had turned hostile. For the position that it is the duty of the Court to examine such witness reliance was placed on a number of decisions such as In re. Donald! Dixon AIR 1938 Mad 900 at PP. 901, 902(A); In re. Peria Guruswami Gounder AIR 1941 Mad 765(B) and Sarfaraz Ali v. Emperor AIR 1941 Oudh 599(C). In the case of In re. Donald Dixon (A) the prosecution examined at the re-trial only one direct witness to prove the alleged offence of attempt to commit murder and gave up two witnesses who were present at the occurrence, on the ground that they had turned hostile. Commenting on their non-examination Pandrang Rao, J., said: