HANSRAJ HARJIWAN BHATE Vs. EMPEROR

JUDGEMENT

(1.) THIS order disposes also of Revision Applications Nos. 28 and 29 of 1940. These three arise out of three criminal cases for theft of Government timber, which are pending before a special Magistrate at Wardha. The cases are numbered 1, 2 and 4 of 1938. They started on 20th March 1938. Initial lists of 14, 12 and 16 witnesses were put in with the challans, of which two in two cases and one in the third were given up before charge. One witness Mr. George, Conservator of Forests was reserved till after charge. On 23rd January 1939 in case No. 1 of 1938 the prosecution put in an additional list of 9 witnesses, but no order was passed about that. Charges were framed in all three cases on 14th and 15th April 1939 and then cross-examination was proceeding when on 4th November 1939 the prosecution put in another list of 12 witnesses out of which three were repeated from the list of 23rd January 1939, 8 were new and the last was P.W. 1 whose recall on a certain point was asked for. In the other two cases lists of 5 and 7 witnesses were put in on 21st November 1939. The special Magistrate passed an order allowing these witnesses to be summoned, and after the Sessions Judge had been unsuccessfully moved, the present revision applications were filed to contest the legality and propriety of these orders. It is first of all said that there is no provision in the Code by which the prosecution can file an additional list of witnesses. Section 252, Criminal P.C. it is argued, does not apply to a case started on a police challan. I think that contention is wrong on the face of it: Section 252, like the other sections in Chap. 21, applies to warrant cases generally. Then it is said that if Section 252(2) does apply the Magistrate has a duty to summon witnesses out of the prosecution list once only and has no power to do so again. This is not in accordance with the decision in Sodhi v. Emperor Criminal Revn. No. 485 of 1939 which was given by Pollook J" on a revision application in a connected case. He there said: The power given to the Magistrate under Section 2S2(2) may, in my opinion, be exercised from time to time as the occasion requires: see Section 14(1), General Clauses Act.

(2.) IT is now said that Section 252 prescribes a duty but does not give any power; but surely duty implies power to carry out the duty and even when the duty has been fulfilled it does not follow that the Court may not do a thing which it is not strictly obliged to do. Certainly, no prohibition is laid down for the exercise of the power. I respectfully agree with the dictum of Pollock J., in that case. Then Section 256, Criminal P.C., was referred to, and it was argued that the words " any remaining witnesses for the prosecution " in that section must be confined strictly to witnesses mentioned before the charge was framed. The phrase, it is said, is not "any more witnesses" or "any other witness": it must be "remaining" out of a list already submitted to the Court. This point is more debatable. In Emperor v. Percy Henry Burn ('09) 4 IC 268 the phrase was held not necessarily to refer to those witnesses mentioned in Section 252(2) but to be wide enough to include any witness, who according to the prosecution is able to support its case though he has not been summoned provided that he is not sprung on the defence all of a sudden and sufficient opportunity is given to the latter to prepare for the cross-examination of the witness. In Govind Sahai v. Emperor AIR 1914 All 430 the question was to what extent recourse should be had by a Court to Section 540, Criminal P.C. The case in Emperor v. Percy Henry Burn ('09) 4 IC 268 was quoted before the learned Judge, but he failed to find it himself as he thought it was one in the Bombay Law Reports instead of the Bombay Law Reporter. It cannot be said therefore that this case was considered and dissented from. In Raghubir Sahai v. Wali Hussain AIR 1937 All 189 the contrary view was certainly preferred and Sodhi v. Emperor Criminal Revn. No. 485 of 1989 was not followed. It seems to me that if witnesses have been accepted by the Court as competent for the prosecution at any stage before the point for further examination under Section 256 arrives, even if that stage is after charge, they come under the category of "any remaining witnesses." I therefore prefer the Bombay ruling on the point.

(3.) THE learned Advocate General has taken me through the lists of supplementary witnesses objected to and shown how some of them are formal witnesses and one or two are being brought forward on the same point in place of others who are said to have turned against the prosecution. Thus the Deputy Ranger Ataram Laloo is required simply to prove Ex. P-15. His name was mentioned in the deposition of P.W. 1. The Range Officer, Sironcha, is required to prove a document produced recently by Mr. George, Conservator of Forests. The name of Madhoji Ramji was given previously on 13th October 1938. The Range Clerk, Sironcha, is described as a formal witness to prove the issue of way permits for logs by river transport. On going through the other names mentioned in the lists of 4th November 1939 and 21st November 1939 I do not find that any un-fair advantage is being taken of the accused or that any surprise is being sprung on them. There is no alteration of the prosecution case but rather an attempt to make it formally complete by closing up a few possible gaps. It is, as I say, regrettable that the prosecution was not vigilant enough to do this at an earlier stage. On the other hand it is desirable that a case which may be otherwise good should not fail because of minor defects.