JUGAL ALIAS GOBARBHAN SHARMA Vs. GHANASHYAMDAS AGARWALLA

JUDGEMENT

(1.) The Petitioner, who is the accused in a case under Section 497/ 498 of the Indian Penal Code, obtained a Rule as to why the order for examination of two new witnesses Kayan and his daughter Bhagawati Devi should not be set aside and the case should not be decided on the evidence already recorded.

(2.) This Rule was obtained on May 30, 1960, in the case instituted by the opposite party, the husband of Bhagawati Devi, on July 12, 1957, on June 3, 1957, Kayan had instituted a case against the present Petitioner and the opposite party and other for removal of Bhagawati Devi by deceitful means and for wrongful confinement in secret. That case under Section 365 of the Indian Penal Code No. G.R. 2046 of 1957 of Barrackpore court ended in a, final report by the police on March 31, 1958. A few days after instituting the present case on July 12, 1957, the opposite party started divorce proceedings against Bhagawati Devi, presumably on the ground of adultery, etc. Two revisional applications were filed in this Court one by the present Petitioner and the other by some agent on behalf of Kayan and Bhagawati Devi. The earlier Petitioner of the accused was for staying the proceedings pending at Alipore (in the present case) till the disposal of the Barrack-pore case. The Rule was ultimately discharged. The application in favour of Kayan and Bhagawati Devi mentioned above was dismissed and the relevant Rule discharged on December 18, 1960. These details will be necessary to show some of the elements of delay.

(3.) The main grievance of Mr. Mookerjee, learned Advocate for the Petitioner, is that the opposite party had not mentioned the names of these two witnesses in the petition of complaint and that for the first time Kayan and Bhagawati Devi were cited as witnesses on March 20, 1959 which was the 11th date of the bearing of the case. Meanwhile, several applications had been filed by the complainant opposite party for citing witnesses in driblets and the prayers were allowed. But even in these applications the names of the two witnesses concerned were not mentioned. The main question is whether the order of the1 learned Magistrate for warrant of arrest on May 27, 1959, and order for Proclamation and Attachment on June 24, 1959, were illegal. The next question that will come up for consideration in this connection will be whether the issue of these processes amounted to an abuse of the process of the court, Mr. Mookerjee has referred to Section 204(1A) of the Code of Criminal Procedure which lays down "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 point, however, was considered in a case of this Court, Syama Charon Saha v. Nagendra Nath Rakshit,1956 61 CalWN 192. It was held inter alia that the complainant was not to be tied inexorably with the list of witnesses mentioned in Section 204(1A) of the Code of Criminal Procedure in view of Section 252(2) of the Code, so far as the trial of the case was concerned. Section 252(2) of the Code of Criminal Procedure is to the following effect: