S BALWANT SINGH Vs. S HARBHAJAN SINGH

JUDGEMENT

(1.) THIS revision is directed against the order dated 1-2-1976 of the learned City Magistrate, Srinagar allowing the application of the complainant respondent for summoning an additional witness in the case.

(2.) A complaint under Section 500 R. P. C has been filed by the complainant respondent against the petitioner in the court of City Magistrate, Srinagar, The complainant examined his witnesses and the accused was thereafter charge sheeted. Some prosecution witnesses were recalled for the purpose of re-cross-examination under Section 258. At the stage when the complainant was to be cross-examined, he moved an application praying for summoning an additional witness namely one Badri Nath Booking Clerk of M/s. Broca's Press. This application was resisted on behalf of the accused petitioner on the ground that it could not be entertained at that stage of the proceedings. According to him Section 256 Cr. P. C. did not confer this right on the complainant and did not empower the court to summon an additional witness. This argument was repelled by the learned trial Magistrate who allowed the application and ordered that the statement of Shri Badri Nath would be recorded on the next date of hearing after cross-examination of the complainant was over. Aggrieved by this order the accused has come up in revision before this Court.

(3.) APPEARING for the petitioner Mr. M. . L, Qureshi has vigorously contended that neither Section 252 or 256 Cr. P. C. conferred any right on the complainant to produce any additional evidence after the statements of his listed witnesses were recorded under Section 252 and the list stood exhausted. He has elaborated the argument by submitting that in the instant case all the witnesses given in the list were examined by the Court before the charge sheet was framed. No witness remained to be examined. Therefore, no fresh evidence could thereafter be called by the complainant at the stage of Section 256 Cr. P. C. The Code did not empower the Court at the stage of Section 256 Cr. P. C. to examine additional witnesses. This argument is founded on the assumption that after the Magistrate examined all the witnesses in the list at the stage of Section 252 there were left no remaining witnesses in the case to be examined. Section 256 enabled the Magistrate to examine the remaining witnesses left in the list. As the list stood exhausted so no remaining witness was left over that could be called and examined at the stage of Section 258. In support of the contention that the expression 'remaining witnesses' occurring in Section 256 has got reference only to the listed witnesses who were not examined by the Court at the stage of Section 252 Cr. P. C. and that the expression does not apply to fresh witnesses outside the list, reliance is placed on a full Bench authority of Lahore High Court reported in AIR 1945 Lah 201 : 47 Cri LJ 143 (FB ). It is, therefore, submitted that the order of the Court below suffers from this legal infirmity and the same is not sustainable in the eye of law.