SK. AMINOOL ISLAM AND ANR. Vs. DAYANIDHI KHADIRATNA

JUDGEMENT

(1.) THIS revision is against the order dated 24 -2 -1967 passed by a Magistrate 1st Class, Cuttack, refusing to summon a defence witness on the ground that the defence refused to disclose the necessity and the relevancy of examining the said witness.

(2.) THE defence after examining one d.w. wanted to summon one Govinda Mohapatra, the son of the complainant, through Court. Steps to secure his attendance were taken by issuing summons, bailable warrant, and later non -bailable warrant of arrest. At last on 24 -2 -1967 by the impugned order the Magistrate closed the defence by refusing to issue further process against the above named witness. It is worthwhile quoting the relevant portion of the impugned order to appreciate its legality and propriety:

(3.) I am unable to subscribe to the bald proposition advanced by Mr. Mohanty that the Magistrate, having earlier issued professes for securing the attendance of a witness to be examined at the instance of the defence, is found to compel his attendance in any case, and is not entitled to review his decision even though he is later satisfied that the purpose for insisting on the attendance of that witness was to cause vexation or delay or for defeating the ends of justice. Mr. Mohanty, to support his contention, cited the decision reported in, A.I.R. 1935 Allahabad 6381 , which is to the effect that under Section 257 , Code of Criminal Procedure the Magistrate cannot arbitrarily limit the number of defence witnesses; that a Magistrate may refuse to issue process for the appearance of the witnesses when he considers the application to he for the purposes of vexation, delay or for defeating the ends of justice but in such a case the grounds for refusing to summon them shall be recorded in writing; and that "Having summoned them, however, he must be presumed to have concluded that they are not being produced by the accused for the purpose of vexation or delay, etc;, and therefore ha should hear them, and in any case he must record his reasons for not hearing them, in writing." The other case cited by Mr. Mohanty is reported in, A.I.R. 1949 FC 62. The relevant portion of the decision is to the effect that the language of Section 257, Code of Criminal Procedure is imperative and the trial Court has no discretion under which to refuse to issue process to compel the attendance of a witness cited by the accused after he has entered upon his defence, unless it is of the opinion that the application should be refused for any of the reasons which have been specified in the section and which it is found to record. There is nothing in both the above decisions to show that the Magistrate, having once issued process to a particular defence witness, has absolutely no jurisdiction to examine on a later occasion whether the insistence of the defence to secure the attendance of the witness was for the purpose of vexation or delay or for defeating the ends of justice. I am of the opinion that no such limitation should be placed on the lawful exercise of the Magistrate 's power and discretion in the administration of justice.