Delhi High Court
Niadar Singh vs Maman And Ors. on 21 December, 2000
Author: R Chopra
Bench: R Chopra
JUDGMENT
R.C. Chopra, J.
1. This petitioner under Section 482 Cr. P.C. is for quashing the order dated 2.6.1999 passed by learned Metropolitan Magistrate, declining to summon two more witnesses at the stage of pre-charge evidence in a complaint case filed by the petitioner against the respondents. A revision filed by the petitioner against the said order was dismissed by learned Additional Sessions Judge vide order dated 18.9.1999.
2. The question raised before this Court is as to whether a complainant has a
right to produce any additional witness at pre-charge evidence stage when the name of
such a witness is neither mentioned in the complaint nor in the list of witnesses filed
under Section 204(2) Cr. P.C ?
3. The facts relevant for disposal of this petition, briefly stated, are that the
petitioner had filed a complaint under Sections 147/323/379/447/426/506 read with
Section 34 I.P.C. against the respondents. Two witnesses cited by the petitioner, namely Ram Singh and Chandgi Ram died before their examination in the Court and as
such, the petitioner moved an application under Section 311/244 Cr.P.C. for summoning Bhagwan Singh and Ved Prakash who according to him, were witnesses to the occurrence. Learned Metropolitan Magistrate dismissed his application mainly on the
ground that the names of these two witnesses were not mentioned in the complaint
and as such, their examination would cause serious prejudice to the accused per
sons. Learned Additional Sessions Judge was of the view that there was no rule of
evidence that conviction could not be based on the testimony of single witness, i.e.
the complainant only.
4. I have heard learned counsel for the parties.
Section 244 of the Code of Criminal Procedure, which provides a complete answer to the controversy raised in this petition reads as under. :-
"244. Evidence for prosecution -(1) When, in any warrant-case instituted otherwise than on a police report the accused appears on is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution.
(2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing."
5. The Section thus makes clear that after appearance of an accused in a complainant case, the complaint has the liberty to produce the evidence, which goes in support of the complainant. The legal proposition is well settled that the list of witnesses filed in a complaint case under Section 204(2) of Cr. P.C. can be added to and the Court can be requested to summon and examine additional witnesses' at the stage of pre-charge evidence. It is thus obligatory for the Court to take into consideration all such evidence that may be produced by the complainant in support of his case. The view taken by learned Metropolitan Magistrate that the names of the two additional witnesses proposed to be examined were not mentioned in the complaint, could not be the basis for rejecting the prayer of the petitioner for the reason that there is no requirement that the names of the witnesses should be mentioned in the complaint. Their names have to be mentioned in the list attached to the complaint and if a complainant so desires, he can produce and examine witnesses other than those even mentioned in the list subject, of course, to the safeguard that a witness should not be produced suddenly springing a surprise on the accused. Due notice must be given to the accused that a particular witness is sought to be produced and examined by the complainant.
6. The Courts are, therefore, under a legal obligation to examine the witnesses sought to be produced by the complainant at pre-charge stage and as such, both the Courts below failed to exercise their judicial discretion properly by holding that the petitioner was not entitled to produce additional witnesses. In the facts and circumstances of this case, when the petitioner's two witnesses had died before their examination in the Court, it was all the more in the interests of justice to examine some other witnesses in place of the witnesses, who had died.
7. In the result, I am of the considered view that it is a fit case in which powers under Section 482 Cr. P.C. should be invoked to secure the ends of justice. The impugned orders passed by the Courts below are set aside with directions to the Trial Court to permit the petitioner/complainant to produce additional witnesses, as prayed. Ordered accordingly.
