IN THE SUPREME COURT OF INDIA CRIMINAL  APPELLATE JURISDICTION

CRIMINAL APPEAL NO.           OF 2008      [Arising out of S.L.P.(Crl.) No.4247 of 2007]

Sayeeda Farhana Shamim       Appellant

Versus

State of Bihar & Anr.     Respondents

J U D G M E N T  A.K. MATHUR, J.

1. Leave granted.

2. This  appeal  is  directed  against  the  order   dated

13.12.2006 passed by learned Single Judge of the Patna High

Court whereby the learned single Judge of the High Court

has  quashed   the  order  passed  by   the   learned  Sub-

divisional  Judicial  Magistrate, Bhagalpur (hereinafter  to

be referred to as the S.D.J.M.)  in Complaint Case No.1115

of 1999  by which the learned S.D.J.M. allowed prayer of

the complainant by order dated 25.5.2005  to examine five

witnesses  named in the supplementary list filed by the

complainant. A complaint was filed under Sections 323, 406,

498A  of the Indian Penal Code and under Sections 3 & 4 of

the  Prevention  of  Dowry  Act.   Therefore,  the  limited

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question  arose  whether  the  complainant  can  file  a

supplementary list of witnesses or not.  

3.  In order to appreciate the controversy involved

in the matter brief facts may be enumerated.  A complaint

was filed under Sections 323, 406, 498A of the Indian Penal

Code and under Sections 3 & 4 of the Prevention of Dowry

Act.  The  S.D.J.M.  registered  the  complaint.  Syed  Abdul

Shamim, the father of the  complainant  was examined under

Section 202 of the Code of Criminal Procedure but he died

on  9.1.2001.  Therefore,  this  witness  could  not  be  tried

during the trial. Out of  the remaining four witnesses,

only two witnesses i.e. Syed Abdul Shalim and Mohd. Sheru

were examined  before charge and were also examined after

the charge. The rest of the two witnesses namely,  Syed

Abdul  Fahim  and  Syed  Obaidulla   were  gained  over  and

therefore, they did not come to the witness box.  Then, an

application was filed by the complainant to examine further

witnesses  before  the  charge  on  3.1.2003.  The  accused

persons  filed  a  rejoinder  on  5.1.2003.  However,  the

S.D.J.M., Bhagalpur rejected the petition filed on behalf

of  the  complainant  to  examine  further  witnesses  before

charge by its order dated 1.5.2003.  The S.D.J.M. framed

the  charge  on  30.8.2004.  Then  again  on  24.1.2005  the

complainant filed a petition before the S.D.J.M., Bhagalpur

and prayed for issuance of summons to the witnesses whose

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names appeared in the list attached  with the application.

That  application  was  filed  by  the  complainant  after  the

charges were framed  and the witnesses were cross-examined

after the charge. As the rest of the witnesses were gained

over and they did not support the case of the complainant,

therefore, a supplementary list of witnesses was attached

to the application filed by the complainant namely, (i) Md.

Wajahat son of Md.Ilyas, resident of Balha Narayanpur, P.S.

Bhawanipur, District Bhagalpur, (ii) Md. Zafar son of late

Habib, (iii) Bibi Afsana Shamim wifeof late Saiyad Abdul

Shamim, (iv) Pappu alias  Ram Chandra Tiwari son of Basahan

Tiwari  and  (v)  Md.  Rasid  son  of  lat  Md.  Safi,  all  of

Mohalla Barahapura, P.S.Ishakchak, District. Bhagalpur.  A

rejoinder  was  filed  to  the  petition  filed  by  the

complainant. However, on 25.4.2005, learned S.D.J.M. after

hearing  both the parties allowed the application filed by

the complainant and the complainant was directed to examine

all the five witnesses  whose names appeared in the list.

The  S.D.J.M.  found that this  was a case  of torturing a

married  woman  and  demanding  dowry   which  are  continuing

offences, therefore,  some more persons can  throw light on

the occurrence which may help  the S.D.J.M. to arrive at a

just decision and do proper justice to the parties.  This

order passed by the S.D.J.M. on 25.4.2005 was challenged by

the respondents by filing a petition before the High Court.

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Meanwhile,  on 16.11.2005 Md.Zafar was examined in chief

and he was also cross-examined  later on 23.1.2006.  On

30.3.2006  Md.Razi  was  examined  and   he  was  also  cross-

examined by the defence  on the same day. Therefore, out of

the five witnesses two witnesses were examined and three

witnesses remained to be examined. Meanwhile, on 13.12.2006

the petition filed by the respondents before the High Court

was  allowed  and  the  order  of  the  S.D.J.M.  passed  on

25.4.2005  in Complaint case No.1115 of 1999 was quashed.

Learned Single Judge of the High Court took the view that

the names of these witnesses were not given as required

under  Section  204(2)  of  the  Code  of  Criminal  Procedure

(hereinafter  to be referred to as Cr.P.C.). Therefore, at

a  later  stage  supplementary  list  of  witnesses   under

Section   244(2)  Cr.P.C.  could  not  be  furnished  to  be

examined.  Learned  Single  Judge  accordingly,  allowed  the

petition and quashed the order of the S.D.J.M., Bhagalpur.

Hence, the present appeal.  

4. We have bestowed the best of our consideration to

the order passed by the learned Single Judge of the Patna

High  Court.   The  procedure  as  to  how  to  proceed  on  a

complaint filed before the Magistrate has been dealt with

in Chapter XV. Under Section 200, Cr.P.C. the Magistrate

taking  cognizance  of  offence  can  examine  on  oath  the

complainant and the witnesses, if any,  and  that shall be

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reduced in writing and in case the Magistrate  is of the

opinion that cognizable offence is made out, he can issue

summons under Section 204, Cr.P.C. and  if he finds that no

sufficient  material  is  there,  then  he  can  dismiss  the

complaint  under  Section  203,  Cr.P.c.  However,  in  the

present case, process was issued under Section 204, Cr.P.C.

Thereafter, charge was framed and the trial began in the

present case. Then  under Section 244, Cr.P.C. the S.D.J.M.

proceeded  to  hear  the  prosecution  and  took  all  such

evidence  as  was  produced  in  support  of  the  complaint.

Under  Section  246,  Cr.P.C.  if  the  accused  is  not

discharged, then the Magistrate will proceed and take the

evidence of the remaining witnesses for the prosecution.

Now,  the  question  is  whether  a  supplementary  list  of

witnesses  can  be  furnished  by  the  complainant  and  the

Magistrate can summon those witnesses to be examined.  The

question is whatever witnesses who have been examined under

Section 244,Cr.P.C.  the Magistrate cannot entertain any

further list of witnesses to be examined by the complainant

to substantiate his allegation in the complaint.  It is

true  that  under  Section  244,  Cr.P.C.  if  the  charge  is

framed, then the prosecution has to examine the evidence

produced  by  it  in  support  of  its  case.  After  that  the

accused will have the right to cross-examine and the matter

will  proceed to be decided under Section 246. But before

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the matter is decided and during the pendency of the trial

can the Magistrate entertain any petition filed  by the

prosecution for examining additional evidence in support of

its case.

5. Learned  counsel  for  the  appellant  invited  our

attention to the following decisions of various High Courts.

i. 1993 Cr.L.J. 32 Jamuna Rani v. S.Krishna Kumar & Ors.

ii. 1992 Crl. L.J. 1554 Nawal Kishore Shukla & Ors. v. State of U.P. & Anr.

iii.1977 Crl.L.J. 425 S.Vvivekanantham v.  R.Viswanathan & Ors.

iv. AIR 1967 Kerala 233 V.Ratna Shenoy v.  

S.A.Prabhu & Ors.

v. AIR 1960 Bombay 513 State of Bombay v. Janardhan & Ors.

vi. AIR 1958 Madras 341 K.Somasundaram v. Gopal & Anr.

Before, we refer to decisions of various High Court, it may

be mentioned here that the discretion of the Magistrate is

no where fettered by any of the provisions contained in

Cr.P.C.   Section 244, Cr.P.C. reads as under :

“  244.  Evidence  for prosecution.-  (1) When, in any warrant- case  instituted  otherwise  than  on  a

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police report  the accused appears or 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.”

The expression, used as   ‘the Magistrate shall proceed to

hear the prosecution and take all such evidence as may be

produced in support of the prosecution’.  Similarly,  sub-

section (6) of Section 246, Cr.P.C. reads as under :

“  (6)  The  evidence  of  any  remaining witnesses for the prosecution shall next be taken and after cross-examination and re-examination (if any); they shall also be discharged.”

The expression used as, ‘  the evidence of any remaining

witnesses  for  the  prosecution  shall  next  be  taken,’.

Therefore, the Magistrate has discretion, before he closes

the  trial,  to summon the  witnesses  if  it advances the

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cause of justice. Here we want to say a word of caution

that  the  discretion  which  has  been  conferred  on  the

Magistrate under Section 244(2) and Section 246(6), Cr.P.C.

should  be  used  in  appropriate  cases  for  reasons  to  be

recorded. The discretion should not be used fancifully and

for a mala fide purpose to harass the accused.  It is quite

possible  that  sometimes  when  the  complainant  fails  to

substantiate  the  allegation,  he  may  resort  to  dilatory

tactics  and   thereby  harass  the  accused  by  giving

supplementary list to prolong the continuance of the case.

This should be checked but in case it is found that in fact

the application for summoning the additional witnesses  is

made  for  bona  fide  purpose   and  to  substantiate  the

allegations made in the complaint, then the Magistrate may

exercise such power in appropriate case.  

6. Learned  counsel  for  the  appellant  invited  our

attention to the decision of the Andhra Pradesh High Court

in  Jamuna  Rani  (supra)  wherein  learned  Single  Judge  has

referred  to   various  decisions  of  different  High  Courts

i.e. Madras, Bombay and Allahabad High Courts and held that

the Court  has discretion and it is not confined to the

witnesses mentioned in the list appended to the complaint

but  it  refers  to  any  other  witness  mentioned  in  a

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subsequent application filed before the discharge order is

passed  by  the  Magistrate.  It  was  held  by  the   Andhra

Pradesh High Court in the case of  Jamuna Rani (Supra) as

under:

”Taking into account the views expressed  by the Madras, Bombay and Allahabad High Court and on interpreting ‘ all such evidence’ in S. 244(I), I feel that it does not limit to the witnesses mentioned in the list appended to the complaint but it refers to any other witness mentioned in a  subsequent  application  filed  before  the discharge order is passed by the Magistrate.”

Similarly,  the  Allahabad  High  Court   in  Nawal  Kishore

Shukla & Ors (supra) has taken an identical view.  Learned

Single Judge  of the High Court held as follows :

“  As  regards  the  order permitting  the  complainant to examine  a witness,  not  named  in  the  list  of witnesses,  the  learned  Magistrate  could have done so in the circumstances of the case. It was not necessary that al the witnesses named in the list of witnesses should have been examined before such a permission  could  have been granted.  The witness  was  in  attendance  and  the prosecution  evidence  was  being  recorded under Section 244, Cr.P.C. The order by the  learned  Magistrate  permitting  the complainant to examine the witness cannot be said to be illegal or unjust.”

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Similar  view  was  taken  by  the  Madras  High  Court  in

S.Vivekanantham (supra).  In this case learned Single Judge

observed as follows:

“Section 244 is wide enough to give  power  to  a  Court  to  accept  a supplemental  or  additional  list  of witnesses given by a complainant and to issue  summons  to  them  and  record  their evidence.  Nowhere  the section lays  down that   the  complainant  will  not  be entitled to file  a supplemental list of witnesses  nor  the  Court  empowered  to entertain such a list and examine one or more  of  the  witnesses  cited  therein. Though  Section  204(2)  of  the  new  Code prescribes  that  no  summons  or  warrant shall be issued against the accused under sub-section  (1)  until  a  list  of  the prosecution  witnesses  has  been  filed, that  cannot  be  taken  to  mean  that  a complainant  is  irretrievably  chained  to the first list of witnesses filed by him and he cannot seek the permission of the court  to  examine  additional  witnesses even where circumstances or interests of justice  warrant   such  examination.  To hold  otherwise  would  actually  lead  to grave  injustice  and  hardships  to complainants.”

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Learned  Single  Judge  has  followed  the  decision  of   the

Division Bench of the Madras High Court in K.Somasundaram

(supra) which reads as under :

“  The list filed under S.204 (1-A)  can  be  added  to  by  supplemental lists accompanied by applications to the Court to summon those new witnesses. Such supplemental  lists can be in addition to all  the  witnesses  in  the  primary  list filed  by  the  private  complainant  under S.204(1) Crl. P.C., or in addition only to such of the witnesses in the primary list  whom  he  decides  to  examine.  The phrase “ take all such evidence as may be produced  in  support of the  prosecution” in  S.244(1),  and  S.244(2)  and  S.252(2) Cr.P.C. shows the ample  powers of the Court in this respect.”

Similar view has been taken by the learned Single Judge of

the Bombay High Court in State of Bombay v. Janardhan &

Ors.( supra) wherein it has been held as follows:

“ After the insertion of S.204 (1A),  S.256  has  to  be  read  along  with S.252  also  with  section  204(1A). Therefore, in cases instituted otherwise on  a  police  report  the  complainant  is restricted  to  the  examination  of witnesses  whose  names  are  given  in  the

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list under section 204(1A). At the same time  in  a  proper  case  the  list  can  be added  to  with  the  permission  of  the Court.  The  Court  should  not,  however, 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.”

Similar view has been taken by learned Single Judge of the

Kerala High Court in V.Ratna Shenoy (supra). Relying on the

decision of Madras High Court in K.Somasundaram (supra),

the learned Single Judge of the  Kerala High Court observed

as follows:

“   I  cannot  agree   with  the view that the word ‘remaining witnesses’ involves  only those that are left out from the first list. It would be open to the  learned  Magistrate  to  examine witnesses  and  to  admit  any  essential documents which the prosecution wishes to produce.”

The  Learned  Single  Judge  observed  that  the  expression

appearing in ‘ remaining witnesses’ should  be given wide

interpretation.

7. As against this, our attention was invited to a

decision of the Calcutta High Court in  Hari Pada Banerjee

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v.  Hem Kanta Sen ( AIR 1969 Calcutta 429). Learned Single Judge of the Calcutta High Court has held as follows:

“  The  expression  ‘remaining witnesses’ in Section 256 should not be given  an  unnecessarily  wide interpretation  and  it  means  witnesses originally included in the list submitted under Section 252(2) but not subsequently examined.”

But  as  against  this,  the  consensus  opinion  of  the  High

Courts  of   Andhra  Pradesh,  Kerala,  Madras,  Bombay  and

Allahabad appears to be more sound.

8. In view of the consensus of the opinion which has

emerged from various decisions of the High Courts appears

to  be  that  the  power  of  the  Magistrate  should  not  be

fettered either under Section 244 or under sub-section (6)

of Section 246 of the Cr.P.C. and full latitude should be

given  to  the  Magistrate  to  exercise  the  discretion  to

entertain  a  supplementary  list.  But  as  we  have  already

added  a   word  of  caution  that  while  accepting  the

supplementary  list   the  Magistrate  shall  exercise  its

discretion  judiciously for the advancement of the cause of

justice  and  not to give  a handle to  the complainant to

harass the accused.

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9. As a result of our above discussion,  the view

taken  by  learned  Single  Judge  of  the  Patna  High  Court

cannot be sustained and consequently, the appeal is allowed

and  the  order  passed  by  the  learned  Single  Judge  dated

13.12.2006 is set aside and it is for the Sub-Divisional

Judicial  Magistrate,  Bhagalpur  to  examine  the  remaining

witnesses  from  the  supplementary  list   given  by  the

complainant and then to proceed according to law.

             …………… ………………….J [A.K.MATHUR]     

              .………………………………J New Delhi,         [AFTAB ALAM] May 16, 2008.

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