Bombay High Court
Jitendra Satish Avhad And Ors vs Vasant Shankar Kelkar And Anr on 6 August, 2015
Bench: A.M. Thipsay
906-WP-2489-2015.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.2489 OF 2015
JITENDRA SATISH AVHAD & ORS. )...PETITIONERS
V/s.
VASANT SHANKAR KELKAR AND ANR. )...RESPONDENTS
Mr.S.M.Oak i/b. Mr.Sagar Joshi, Advocate for the Petitioners.
Mrs.M.R.Tidke, APP for the Respondent - State.
CORAM : ABHAY M. THIPSAY, J.
DATE : 6th AUGUST 2015.
ORAL ORDER :
1 Heard Mr.S.M.Oak, the learned counsel for the
petitioners.
2 The petitioners are the accused in the complaint case
filed by respondent no.1 herein, which is pending before the
Judicial Magistrate First Class, Thane. The case is in respect of an
offence punishable under Section 431 of the Indian Penal Code
(IPC) read with Section 34 thereof. I am informed that the
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evidence before Charge is being adduced and respondent no.1
(hereinafter referred to as 'the complainant') has examined
himself. On 30th January 2015, the complainant made an
application praying that certain persons mentioned in the
application be summoned as witnesses. The complainant
mentioned that the said application could be granted by the court
by exercising its power under Section 311 of the Code of Criminal
Procedure (Code). The learned Magistrate, on the same day
allowed the application and passed an order directing witness
summonses to be issued to the witnesses mentioned in the said
application. The petitioners are aggrieved by the said order
issuing summonses to the witnesses and have therefore,
approached this court by filing the present petition invoking the
jurisdiction of this court under Article 227 of the Constitution of
India.
3 The main contention of the learned counsel for the
petitioners is that, the application of the complainant was decided
without hearing the petitioners i.e. the accused persons. It is also
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submitted that it was decided hurriedly and on the same day. It is
also submitted that no reasons have been recorded by the learned
Magistrate for allowing the said application. Reliance has been
placed on a decision of this court in Shri R.N.Kakkar vs. Shri
Hanif Gafoor Naviwala & Others reported in 1996(2) ALL MR
466.
I have gone through the application made by the
complainant, before the Magistrate, seeking witness summonses to
be issued to the persons named in the application, a copy of which
is annexed to the petition.
5 Though there has been a reference to the provisions of
Section 311 of the Code in the application made by the
complainant itself, I find the same uncalled for. Reference to sub-
section (2) of Section 244 of the Code would have been more
appropriate.
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6 The contentions raised by the learned counsel for the
petitioners flow from two beliefs. The first one is, that the
impugned order could have been passed only under the provisions
of Section 311 of the Code. This belief is, again, based on the
belief that by virtue of the provisions of sub-section (2) of Section
204 of the Code, the complainant would not be entitled to
examine witnesses, not mentioned in the list of witnesses, unless
the court chooses to do so under the provisions of Section 311 of
the Code. These beliefs, which form the basis of the contentions
raised by the learned counsel, do not appear to be sound.
7 Sub-section (2) of Section 244 of the Code which
applies to the instant case is worded in such a manner, so as to
suggest that, the Magistrate has ordinarily to issue a summons to
any of the witnesses, whom the prosecution / complainant wants
to examine. A similar provision is found in sub-section (2) of
Section 242 which relates to the trial of warrant cases instituted
on a police report, and sub-section (2) of Section 254 which
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relates to the trial of summons cases. None of these sections
refers to sub-section (2) of Section 204 of the Code. The way sub-
sections (2) of Section 244 and Section 254 are worded, it does
not appear that the power to issue summonses is confined only to
the witnesses named in the list, contemplated under sub-section
(2) of Section 204 of the Code.
The powers conferred on a court by Section 311 of the
Code are very wide. The words 'at any stage' or 'recall and re-
examine' used in the said section are significant. The power under
the said section can be exercised irrespective of the stage of the
inquiry or trial. A witness can be interposed even during the
evidence of the prosecution or of the defence is being adduced,
should the conditions requisite for exercising the power be
satisfied. Witnesses can be called or recalled or re-examined even
after the final arguments in a trial are over. The width of the
powers conferred by the said section is not required for
summoning a witness named by the complainant when the
complainant's evidence is being adduced. Rather, the provisions
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of sub-sections (2) of Section 244 and Section 254 indicate that
on an application of the complainant, made at the stage when the
complainant's evidence is being adduced, has to be ordinarily
allowed. As aforesaid, these sub-sections do not even make a
reference to the provisions of sub-section (2) of Section 204 of the
Code.
Sub-section (2) of Section 204 imposes a prohibition
on issuing summons or warrant against an accused by way of
process, until a list of prosecution witness has been filed and
cannot be brought in picture for considering whether witness
summonses should be issued on an application for the
prosecution. Undoubtedly, the requirement that a list of
prosecution witnesses should be filed before an accused is
summoned, as imposed by the said sub-section, indicates the
policy of the law that the accused should have an advance
intimation as to, who would be the witnesses for the prosecution.
However, it is not that there is a prohibition to examine the
witnesses not named in the list of witnesses. Infact, it has been
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held that there is no prohibition for the complainant, or the
prosecution, to even furnish an additional list of witnesses. To
obviate the possibility of prejudice being caused to the accused
persons, on being taken by surprise, the court can, in a given case,
grant, normal and reasonable time to the accused, so as to be
ready for the cross-examination of such witnesses.
In the circumstances, it was not necessary for the
Magistrate to have heard the petitioners i.e. the accused persons,
before deciding, whether or not the witnesses whom the
complainant wants to be examined, should be summoned. Once
the complainant claimed that the evidence of the said witnesses
was relevant and necessary for supporting his case, it would not
be for the accused persons to say that the witnesses, whom the
complainant wants to be examined, should not be summoned.
There is, therefore, no substance in the contention that the
impugned order is bad in law, by reason of it having been passed
without giving an opportunity to the accused persons of being
heard in the matter.
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11 The only question that can be legitimately raised by an
accused, when witnesses not mentioned in the list of witnesses are
being summoned by the prosecution / complainant, is of
prejudice. So far as the present case is concerned, it is at a
preliminary stage, where the complainant's evidence, before
charge is being adduced. There would be no question of the
accused being prejudiced, by permitting the complainant to
examine the witnesses in support of the allegations made in the
complaint. As a matter of fact, not summoning the witnesses
inspite of the complainant's application seeking to examine them,
would have been unjust and improper.
12 It was also suggested, faintly, by the learned counsel
for the petitioners that the evidence of the witnesses, who have
been summoned, is not relevant. That would be an aspect to be
considered by the Magistrate at an appropriate stage and that
could not have been a ground to refuse to summon those
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witnesses, when according to the complainant, their evidence
would assist him in establishing his case.
13 It is not possible to hold that the Magistrate has
committed an illegality by summoning the witnesses, as prayed
for, by the complainant.
The jurisdiction conferred upon this court by Article
227 of the Constitution of India is meant to be exercised to keep
the subordinate courts within the bounds of their authority. It
cannot be said - in any case - that the impugned order has been
passed by the Magistrate in excess of the authority vested in him
by law.
As such, no interference is warranted.
15 The petition is rejected.
(ABHAY M. THIPSAY, J.)
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