ALI JAN Vs. AMIR KHAN

JUDGEMENT

(1.) This is a petition for revision of an order of a residency Magistrate, dated the 10th November, 1956, by which he gave leave to the complainant in a summons case to examine a witness whose name did not appear in the list of witnesses already filed under Section 204 (1-A) of the Code of Criminal Procedure. The Magistrate seems to be of the view that the production of evidence which he has allowed is necessary in the interests of justice.

(2.) The only question in this case is whether it is open to the complainant to produce a witness for examination at the trial of a summons case, whose name has not been included in the list of witnesses furnished under Section 204 (1-A) of the Code. That section appears in Ch. XIV of the Code of Criminal Procedure, and the section provides that no summons or warrant shall be issued against an accused under Sub-section (1) of Section 204 until a list of the prosecution witnesses has been filed. The Chapter relates to commencement of proceedings before Magistrates. After the proceedings have commenced, a summons case will be tried according to the procedure laid down for the trial of summons cases and a warrant ca?e in accordance with the procedure devised for the trial of warrant cases. The present case is a summons case, and, therefore, Section 244 of the Code of Criminal Procedure applies. That section provides that the Magistrate shall hear the complainant and take all such evidence as may be produced in support of the prosecution and also hear the accused and take all such evidence as he produces in his defence.

(3.) It is argued on behalf of the petitioners that a person whose name is not included in the list filed under Section 204 (1-A) cannot be examined during the trial of the case, and the Magistrate in this instance erred in allowing the examination of a witness who had not been named in the list. I think this represents an extreme point of view which I am not prepared to accept. All that Section 204 (1-A) is designed to serve is that the accused should be apprised at the earliest point of time of the persons who are likely to give evidence against him. As a matter of fact no summons or warrant shall issue against an accused unless a list of prosecution witnesses has been filed; but that does not mean and imply that in no circumstances can a person who is not included in the list be permitted to be examined in the course of the trial. If that was the real intention then one would expect a clearer and firmer expression of the view by the Legislature than what is to be found in Section 204 (1-A) of the Code. Moreover, if this extreme contention prevailed, that would have the effect of abolishing Section 244 (1) of the Code of Criminal Procedure. That section provides, as I have seen, that the Magistrate will take all such evidence as may be produced in support of the prosecution. The section does not say that the evidence must be evidence of only those persons whose names appear in the list of witnessed filed under Section 204 (1-A). As regards the value to be attached to the evidence of a person whose name was not included in the list, it has to be left to the criticism of the party affected that such evidence should not be believed; but that is a matter affecting the credibility of evidence. The question here is different and that concerns the right and duty of the Court to allow examination of a person as a witness whose name has not been included in the list.