(1) The learned Sessions Judge of Nagpur has made this reference under S. 438, Cr. P. C. recommending that the order of Magistrate 1st Class, Saoner, rejecting an applcatin made by the complainant in a case against five accused persons underf Ss. 494 and 494 read with S. 109, I. P. C. to examine additional witnesses to prove that subsequent to the date of the second bigamous marriage of Guna, a child was born to Guna & his second wife Milibai, on the ground that under S. 256, Cr. P. C. after the framing of the charge, the complainant could examine only such of the witnesses as had remained unexamined out of the list of witnesses given by the complainant. the learned Sessions Judge, however, took a different view and relying on Emperor v. Nagindas AIR 1942, held that the words "any remaining witnesses" in S. 256, Criminal Procedure Code, are nor restricted to witnesses lef out from the list of witnesses given by the complainant and has made this reference to set aside the order of the magistrate.
(2) The question for determinuation I the meaning of the expression "any remaining witnesses" in S. 256, Criminal Procedure Code.
(3) The material poertions of the relevant Ss. 252 and 256 are as follows:
"252. (1) In any case instituted otherwise than on a police report, when the accused appears or is brought before a Magistrate such Magistrate shall proceed to hear the complainant (if any) and take all such evidence as may be produced in suppport of the prosecution:
. . . . . .
(2) The Magistrate shall ascertain, from te complainant or otherwise the names of any persons likely to be acquainted with acts of the case and to be able to give evidence for the prosecution, and shall summon to give evidence before himself such of them as he thinks necessary.
256. (1) If the accused refuses to plead, or does not plead, or claims to be tried, he shall be required to state, at the commencement of the next hearing of the case or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether he wishes to cross-examine any, and, if so, which of the witnesses for the prosecution whose evidence has been taken. If he says he does so wish, the witnesses named by him shall be recalled and, after cross-examination and re-examination (if any), they shall be discharged. The evidence of any remaining wtnesses for the prosecution shall next be taken, and, after cross-examination and re-examinatio (if any), they also shall be discharged. The accused shall then be called upon to enter up his defence and produce his evidence.
. . . ."
Under sub-section (2) of S. 252 it is for the Magistrate to ascertain from the complainant or otherwise the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution. In cases instituted on a police report, the names of the persons who appear to be acquainted with the circumstances of the case are stated in the charge-sheet filed under S. 173, Cr. P. C. In cases instituted otherwise on a police report, which are dealt with under S. 252 Cr. P. C. it is for the Magistrate to ascertain from the complainant or othersise the names of any persons likely to be acquainted with the facts of the case and to ve able to give evidence for the prosecution, and summon to give evidence before himself such of them as he thinks necessary. As regards remaining witnesses, it was, therefore provided in S. 256 that after the framing of the charge and taking the plea of the accused, and after further examination of the witnesses recalled by the accused, the evidence of the remaining witnesses for the prosecution should next be taken. The word used is "shall". The Magistrate is, therefore, bund to take the evidence of the remaining witnesses under S. 256 mean only the witnesses remaining out of the group of witnesses referred to in S. 256. If the words "any remaining witnesses" include any winesses not ascertained under S. 252, it would be open to the complainant to mention additional witnesses and insist that the magistrate should examine them under s. 256. As to the meaning of this expression, I am, however, bound by the view taken in AIR 1942 Bom 214, where it is held that there is no justification for limiting the words "any remaining witnesses" in S. 256 to those remaining from the list of witnesses already given.
(4)Priorto the amenment of Criminal Procedure code in 1955, in cases instituted otherwise on a police report, a complainant was not obliged to give a list of the witnesses and it was for a Magistrate to ascertain under S. 252(2) the names of such witnesses and to summjon such of them as he thinks necessary. But in 1955 a new section has been added namely S. 204(1A) . Section 204(1A), introduced by Act 26 of 1955, provides that no sumjmons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed. Before 1955, it was not obligatory on the complainant in a case instituted otherise on a police report to file a list of witnesses. Section 204(1A) makes it obligatory for a list of wintnesses to be filed by the complainant even in such cases. although S. 204(1A) was added in 1955 the Legislature did notmake consequential amendment in S. 252(2), Criminal Procedure Code.
(5) It is contended by the learned counses for opponents Nos. 2 and 4 that in 1955, S. 204(1A) has been added and that S. 256 has to be read with S. 204(1A), and that if any itnesses are allowed to be exdamined by the complainant, S. 204(1A) and also S. 540 ould be rendered mogatory.
(6) After the introduction of new s. 204(1A), other sections of the Criminal Procedure Code and in particular S. 256 have to be read along with S. 204(1A) and the question is whether the words "any remaining witnesses" used in S. 256 would have reference to the list of witnesses in S. 204(1A) and hether the ruling contained in AIR 1942 Bom 214 would have to be reconsidered in view of the introduction of the new S. 204(1A). Te object of giving a list of witnesses, as provided in S. 204(1A), is to give notice to the accused of the names of the witnesses for the complainant so that accused can prepare for their cross-examination. If witmnesses not named in the list referred to in S. 204(1A) are allowed to be examined by the complaint the abject of the Legislature in adding the nw S. 204(1A) would be defeated. After the insertion of S. 204(1A), S. 256 has to be read along with S. 252 also with S. 204(1A).Therefore, in my opinion, in cases instituted othewise on a police report the complainant is restricted to the examination of witnesses whose naes are given in the list under S. 204(1A) At the same time, it is not stated in the new section that the list cannot ve added to with the permission of the court. The Court should not, howev er, give permission to add names to the list if it is going to prejudice the case of the accused or if it is not in the interests of justice. In my opinion, in proper cases if an application is made, the complainant may be permitted to add names to the list given by him under s. 204(1A). In the instant case he prosecution case is that subsequent to the date of the alleged bigamous marriage the second wife of the alleged oftender gave birth to a child. The names of the witnesses on this point could not have been given by the complainant in the list of witnesses given under S. 204(1A). This is, therefore, a proper case in which names may be permitted to be added to the list given under S. 204(1A).
(7) It is also contended by the learned counsel for opponents Nos. 2 and 4 that the evidence as to the birth of a child is irrelevant. It is always open to the accused to object to any of the evidence on the ground of irrelevancy of inadmissibility. In his application for permission to examine fresh witnesses the complainant did not give the names of the witnesses nor did he seek permission to add names to the list which he must have given under s. 204(1A). On these grounds the order passed by the Magistrate may be justified. If however the complainant makes an application to add new names to the list referred on in S. 204(1A), the learned magistrate should consider it and pass reasonable orders on it after hearing both sides. If new names are allowed to be added to the list, the accused should be given a further opportunity of recalling any of the witnesses already examined for further cross-examination.
Subject to the above remarks, the reference is rejected.
(8) Reference rejected.