A RAMALINGA UDAYAR Vs. RAMASWAMY MUDALIAR

JUDGEMENT

(1.) THIS case has already been before the High Court twice. As the learned Additional District Magistrate remarks, the complaint was filed in 1927. Devadoss, J., at one stage of the case suggested that the charge may as well be amended. In pursuance of that suggestion, the charge was, as a matter of fact, amended. The question then arose whether the accused was entitled to have the witnesses who were already examined in the case re-examined. The learned Additional District Magistrate held that he was not entitled to have the witnesses already examined re-examined simply because the charge was technically amended. He was corrected by this Court and Reilly, J., in his order dated 20 September, 1928, directed examination of the witnesses who were already examined in the case. After that a further difficulty has arisen. The accused seems to have filed two lists of witnesses, the first on. the 8 August, 1927, and the second on the 14 September, 1927. The second list contained the names of 28 witnesses. After the charge was altered on the 26 May, 1928, the accused wanted to add to the number of witnesses to be examined and gave a third list of witnesses. THIS third list contained the names of 42 witnesses. The question was raised before the Additional District Magistrate whether the accused was entitled to have new witnesses examined whose names he had not included in either the first or the second list. As I understand the learned Additional District Magistrate's order, he was allowed the examination not only of the prosecution witnesses who had been already examined but also of such of the defence witnesses who had been examined and whose examination was asked for on behalf of the accused. The dispute between the parties (as I understand) has centered on this, whether some of the witnesses included for the first time in the third list, should, as a matter of right, be examined on the side of the accused. It was contended on behalf of the prosecution that the learned Additional District Magistrate has, as a matter of fact, directed his attention to the question whether these additional witnesses are material to the defence as disclosed by the altered charge and it was pressed before me that, in his order he was of the opinion that the application to have these witnesses examined was made only for the purpose of vexation and delay. On the other hand, on the side of the accused, certain other portions of the order were read to me where the Magistrate emphasized one aspect of the question, namely, that a new line of defence was chalked out after the charge was altered, and that it is with a view to support this new line of defence that these additional witnesses were sought to be examined taking advantage of the fact that the charge was altered. But the point that I have to decide, according to me, is this: When a charge has been altered, having regard to the provisions of Secs.231 and 257 of the Criminal Procedure Code, what is the proper order that a, Magistrate should pass with reference to new witnesses that an accused person seeks to examine. I am unable to agree with the suggestion made on behalf of the complainant that under Section 231 the obligation that the Magistrate is under is only to examine such of the witnesses as have already been examined and that with. reference to the other witnesses the Magistrate is entitled to decline to issue process to examine them, unless, in the words of the section, the Court thought their evidence to be material. THIS extreme step would lead to this result, that even with reference to the witnesses who have already been cited and whose names were included in the prior lists and to whom process might have been issued in the first instance, the Magistrate would further be entitled to ask himself the question whether the Court thought their evidence to be material. After reading Secs.231 and 257 I have come to the conclusion that after the charge is altered the accused is entitled to have his witnesses examined, unless for reasons mentioned in Section 257 the Magistrate thinks that the application is made for the purpose of vexation or delay or for defeating the ends of justice. The two Secs.231 and 257 have to be read together, and that is the construction, which I think, should be placed having regard to the principle underlying Secs.231 and 257. No doubt, this case has been pending for a long time, but unless the preliminary steps are all properly gone through, it may be that the Appellate Court may at a still later stage find itself in a difficult position; and, therefore, I have come to the conclusion that the Magistrate should be directed to consider whether, with reference to the new witnesses included in the third list, any grounds are shown such as are mentioned in Secs.231 and 257 and if he comes to the conclusion that any particular new witness included in such list should not be examined, he will state the grounds as mentioned in Section 257. No doubt Section 231 does not state that the grounds should be mentioned; but having regard to the fact that the Appellate Court might have to consider whether the evidence of such new witnesses would have been material or not, it is always essential that the grounds should be so recorded. I was shown some confidential memorandum filed before the Additional District Magistrate, but I think on the whole it is better not to rely on confidential memoranda in a case like this, but to follow the principle underlying Secs.23l and 257 end to proceed to record with reference to each particular new witness whether there are grounds as mentioned by the sections, I send the case back to him with these remarks, so that he may deal with the case in the light of the observations made above. Of course the witnesses whose evidence was dispensed with after the alteration of the charge need not be examined.