AJAIB SINGH Vs. CHINDO AND ORS.

JUDGEMENT

(1.) THE facts giving rise to this case are that Ajaib Singh complainant filed a complaint under Sections 494, 497 and 109, Indian Penal Code, against Smt. Chindo and 5 others alleging that Chindo was his legally wedded wife and underwent a form of marriage later on with Harbans Singh accused who is the husband of her deceased sister. Smt. Chindo and Harbans Singh have been living in adultery ever since. Mit Singh and Kartar Kaur accused are parents of Chindo and Arjan Singh and Smt. Harbans Kaur accused are parents of Harbans Singh. The first complaint of Ajaib Singh was dismissed on 22nd December, 1961. and this is the second complaint which was filed on 4th of January, 1962. Along with this complaint a list of two witnesses was given as required by Section 204(1 -A) of the Code of Criminal Procedure. The list contained names of two witnesses and it was stated that he would bring the remaining witnesses with himself. Later on he filed the second list of prosecution witnesses adding six names. Not content with the two lists he on 22nd May, 1962 filed a third list of witnesses adding names of 9 prosecution witnesses. The third application was also allowed and the complaint was permitted to summon the witnesses mentioned in the list. On 4th June, 1962, the fourth list of witnesses was furnished by the complainant seeking that six more prosecution witnesses may be called. The learned Magistrate by his order dated 9th June 1962, has declined to summon the witnesses mentioned in the fourth list dated 4th June, 1962 as he thought that if this were allowed there would be no finality in the matter. From the order of the learned Magistrate refusing to call witnesses figuring in the fourth list complainant brought criminal revision in the Court of the Sessions Judge. The matter was taken up by the Additional Sessions Judge, Amritsar, and he has submitted the record to this Court recommending, that the order of the Magistrate dated 9th June, 1962 be set aside , and the, Magistrate should be directed to take all evidence as may be produced by the Petitioner in support of the prosecution case. The contention of the complainant rests on the interpretation of Sections 204 and 252 of the Code of Criminal Procedure. Section 204(1 -A) provides that no summons or warrant shall be issued against the accused under Sub -section (1) until a list of the prosecution witnesses has been filed. In this particular case this provision is not attracted because the list of prosecution witnesses was filed.

(2.) SECTION 252(1) requires that in cases instituted otherwise than on a police -report when the accused appears or is brought before a Magistrate such Magistrate shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution. Sub -section (2) provides that the Magistrate shall ascertain from the complainant or otherwise the names of any persons likely to be acquainted with the facts' of the case and to be able to give evidence for the prosecution and shall summon to give evidence before himself such of them as he thinks necessary.

(3.) LEARNED Counsel for the complainant has placed reliance on a number of decisions but which, to my mind, are not helpful for upholding his contention. He cited K. Somasundaram v. Gopal , A.I.R. 1958 Mad. 341. It was said that the list filed under Section 204(1 -A) can be added to by supplementary lists accompanied by applications to the Court to summon those new witnesses. Such supplementary lists can be addition to all the witnesses in the primary list filed by the private complainant. But when the Magistrate is asked to summon fresh witnesses whose names appear in the supplementary list it is his duty to apply his mind to the application and should consider whether in the circumstances of the case such a permission should be granted. A Magistrate must weed out obviously frivolous names and if he considers that witnesses are unnecessary or the object is merely to cause harassment he is not bound to summon all witnesses named in the supplementary list. Another decision which was cited at the Bar is Ishwardas v. Madho Singh Tomar : A.I.R. 1958 M.P. 27. This decision simply lays down that when a supplementary list of the names of the witnesses is given it is incumbent upon the Magistrate under Section 252(2) Code of Criminal Procedure, to examine the list newly filed and call for necessary information on this matter from the complainant. In the circumstances of that case it was found that the order passed by the Magistrate closing the prosecution case and refusing to summon witnesses was erroneous. On the facts the decision in Ishwar Das v. Madho Singh : A.I.R. 1958 M.P. 27 is distinguishable as the facts and circumstances of the instant case are not parallel. There is ample authority that Section 252 in the matter of supplementary list confers wide discretion upon a Magistrate. Section 252 contemplates two stages. The first stage is when evidence is offered on the day when the accused appears or is brought before the Court and the second stage is when the first stage has passed. The hearing of any unsummoned witnesses subsequent to the date is a matter within the Court's discretion. If the list is unduly long or appears to have been filed vexatiously the Magistrate has the power to scrutinise the list and to prevent undue harassment of the accused and an unwarranted prolongation of the trial. Similar view has been expressed in Govind Sahai and Anr. v. Emperor, A.I.R. 1914 All. 430 (2) and K.C. Menon v. P. Krishna Nayar : A.I.R. 1926 Mad. 989.