(1.)THIS is a reference by the Additional District Magistrate Alwar and raises an interesting question of procedure.
(2.)THE material facts may be stated briefly as follows. The petitioners Nathia and another instituted a complaint against the opposite parties Sonia and others under Sections 323, 352 and 504 I. P. C. in the court of the Sub-Divisional Magistrate, Rajgarh, on the allegations that the accused while purporting to build on their land on 23-1-1958, had really encroached on a public thoroughfare, and on the petitioners' remonstrating against that, the accused Sonia and Bhoria beat them with lathis and the other accused Kana and Mohana threw stones at them as a result of which they received a number of injuries. It was further alleged that some other persons residing in the village intervened between the parties, otherwise the petitioners would have been given a still severe beating. The petitioners appear to have got themselves medically examined. On 29-1- 1958, the Sub-Divisional Magistrate transferred the case to the court of the First Class Magistrate, Rajgarh, and process was issued against the accused. The accused appeared and their statements were recorded under Section 242 Cr. P. C. on 14-4-1959, and the case was then adjourned to 19-51959, for the complainants' evidence. On the last-mentioned date, three witnesses for the prosecution, namely, Budha, Anla and the doctor in charge of the dispensary at Gangred who had examined the petitioners were present. The evidence of Budha and Anla was recorded by the Magistrate but when the doctor was sought to be examined, counsel for the accused raised the objection that he could not be examined as his name had not been mentioned in the list of witnesses filed under Section 204 (1-A ). The Magistrate finding that the name of the doctor had not been mentioned in the list declined to examine him, further declined to examine the complainants and closed their evidence and fixed the case for the examination of the accused under Section 342 Cr. P. C. Aggrieved by such closure of their evidence, the petitioners went in revision to the Additional District Magistrate, Alwar, who has made the present reference. The grievance of the petitioners was that the Magistrate had fallen into serious error, firstly, in declining to allow the petitioners Nathia and Rawad to examine themselves in support of their own case, and secondly in declining to examine the doctor who had already been summoned and was present in court on 19-5-1959.
(3.)THE question of procedure which emerges for determination in these circumstances is whether the Magistrate was justified in refusing to examine the medical witness and the petitioners (who were complainants) who were present in court simply because their names had not been mentioned in the list filed under Section 204 (1-A) Cr. P. C. The material portion of this section reads as follows: "no summons or warrant shall be issued against the accused under Sub-section (1) until a list of the prosecution witnesses has been filed". This provision, let it be noted, was added by the Criminal Procedure Amendment Act (No. XXVI) of 1955. Broadly speaking, this provision forbids the issue of summons or warrant against the accused until the list of the prosecution witnesses has been filed. It may also be added that the proper time for the filing of such a list would obviously be the time of lodging the complaint. The question, however, which arises for determination is whether this section enacts a complete bar against the examination of any witness or witnesses for the prosecution whose names may not have been mentioned in the list. Reference may be made in this connection to Section 244 of the Code which provides that if the Magistrate does not convict the accused on his admission or the accused does not make any such admission, the Magistrate shall proceed to hear the complainant, if any, and take all such evidence as may be produced in support of the prosecution, and, further, hear the accused and take all such evidence as he may produce in his defence. I am unable to hold that Section 204 (1-A) which, after all is said and done, provides no more than that no summons or warrant shall be issued against the accused under Section 204 (1) until a list of the prosecution witnesses has been filed, does not and cannot over-ride Section 244 (1 ). This last-mentioned section imposes a duty on the Magistrate to take all such evidence as may be produced in support of the prosecution, and it clearly seems to me that where such witnesses are material and are present in court and are sought to be produced, their evidence cannot be shut out merely on the ground that their names were not mentioned in the list. For, there is no provision made either in Section 204 (1-A) or Section 244 that no witnesses whose names are not mentioned in the list shall not be examined, and in the absence of such a provision, I am altogether unable to hold that the court is powerless to examine a witness, and a material witness at that, simply because his name was somehow omitted in the list of witnesses filed under Section 204 (1-A ). All that may be said is that if the name of a certain witness is not mentioned in the list and he is still sought to be produced by the prosecution within the meaning of Section 244 Cr. P. C. , that may go, in a proper case and under proper circumstances, to affect the weight to be given to the evidence of such a witness; but that would be an entirely different matter from saying that such a witness cannot be examined at all. There seems to be authority for holding that it is open to a complainant in a proper case even to file a supplementary list of witnesses to be produced in evidence which may be in addition to the primary list filed by the complainant under Section 204 (1-A ). On a careful and anxious consideration of the whole matter, therefore, I am clearly of opinion that the view of the Magistrate that he had no power to examine any witness or witnesses other than those named by the complainants in the list filed under Section 204 (1-A) Cr. P. C. , howsoever material such a witness might otherwise be, is needlessly narrow and should not be accepted as correct. I have also no doubt that the Magistrate was hardly justified in refusing to examine the complainants themselves because their names were not mentioned in the list as it is not free from doubt whether their names should necessarily have been mentioned in the list of witnesses to be filed under Section 204 (1-A) though perhaps it may be added that it would be safer to do so.