PREMRAJ Vs. STATE

JUDGEMENT

(1.) THE case, out of which this revision petition has arisen, is pending in the Court of the Sub-divisional Magistrate, Banner. A criminal case under Sections 379. 414 and 409 was registered on 20th of October 1948 in the Court of the said Magistrate against the two petitioners, Premraj, Ramanlal and one Bhagirath, on a Police report. A list of 36 prosecution witnesses was attached to this Police report under Section 173 of the Criminal Procedure Code. Out of these 36 witnesses, the prosecution was able to examine 27 upto 4th of August 1949, i. e. , within 10 months. On 8th of June 1949, the Prosecuting Inspector presented an application before the Magistrate requesting him to issue summons in the name of 14 witnesses. All these witnesses were included in the list of 36 witnesses mentioned above. This application of the Prosecuting Inspector for Issuing summons in the name of 14 witnesses was rejected by the Magistrate on 29th of June 1949 but time was granted to the prosecution to bring these 14 witnesses in the Court on their own responsibility and examine them on the next hearing. Out of these 14 witnesses, 11 were examined till 4th of August 1949 and 3 were given up by the Prosecuting inspector and on this date, the Magistrate was again requested by the Prosecuting Inspector to grant time for the examination of a few more witnesses which request was disallowed and the case was kept for framing the charge-sheet. On 6th of August 1949, the charge-sheet was framed and on the refusal of the accused to plead guilty, the case was adjourned for the next date. On the next date, the accused expressed their desire to further cross-examine all the prosecution witnesses. This cross-examination of the prosecution witnesses was finished on 7th of November 1949, and the order which was passed by the Magistrate on this date carries with it a special significance as far as the decision of the present petition before me is concerned. THE learned Magistrate passed orders calling upon the prosecution to examine the remaining witnesses, on which the prosecuting Inspector put in a list of sis witnesses and requested the Magistrate to issue summons in their names. In this list, three witnesses, Mana, Dhura and Rugnath were entirely new, while the other three, Baluram, Kunjraj and Mahadan were the witnesses whose names were included in the list of 36 witnesses given under Section 173 of the Criminal procedure Code. THE accused objected to the right of the prosecution to examine these witnesses at this stage and the case was adjourned for the next day for giving decision on the application of the Prosecuting Inspector. On the next day, i. e. , on 8th of November 1949, the learned Magistrate refused to issue summons in the name of any witness, but allowed the prosecution to examine 3 witnesses, who were entirely new, provided they could bring them to the Court on their own accord, and refused permission to examine the other three whose names were included in the list tendered under section 173, Criminal Procedure Code, on the ground that the application of the prosecution to summon & examine these witnesses had once been rejected by him, and hence, these witnesses do not fall within the category of the remaining witnesses, as provided in Section 256 of the Code of Criminal Procedure. THE accused were not satisfied with this order of the Magistrate and hence they preferred a revision petition in the Court of the Sessions Judge, Balotra. THE learned Sessions Judge dismissed this petition on 19th of December 1949 upholding the order of the Sub-divisional Magistrate, Barmer. THE decision of the learned Sessions Judge on the revision petition of the accused was given in the following words: " THE Section 256, Criminal Procedure Code, clearly enables the Crown to examine witnesses who have not been examined or whose names have not been disclosed. THE expression "remaining witnesses for the prosecution" in Section 256, Criminal P. C. presumably means the remaining witnesses that the prosecution wishes to examine. THE prosecution is at liberty to examine whomsoever it pleases until the prosecution case has been closed. THE prosecution is not closed until the defence begins. "

(2.) THE accused were not again satisfied with this order of the learned Sessions Judge and hence they have given the present petition in this Court, with the prayer, that the order of the Sub-divisional Magistrate, dated 8th of November 1948, giving the prosecution an opportunity to examine, entirely new witnesses, after the framing of a charge-sheet, should be set aside, as the view of both the lower Courts that these witnesses fall within the category of "remaining witnesses for the prosecution" is wrong.