Jugal Alias Gobarbhan Sharma vs Ghanashyamdas Agarwalla

Bhattacharya, J.—The Petitioner, who is the accused in a case u/s 497/498 of the Indian Penal Code, obtained a Rule as to why the order for examination of two new witnesses Kayan and his daughter Bhagawati Devi should not be set aside and the case should not be decided on the evidence already recorded.

This Rule was obtained on May 30, 1960, in the case instituted by the opposite party, the husband of Bhagawati Devi, on July 12, 1957, on June 3, 1957, Kayan had instituted a case against the present Petitioner and the opposite party and other for removal of Bhagawati Devi by deceitful means and for wrongful confinement in secret. That case u/s 365 of the Indian Penal Code No. G.R. 2046 of 1957 of Barrackpore court ended in a, final report by the police on March 31, 1958. A few days after instituting the present case on July 12, 1957, the opposite party started divorce proceedings against Bhagawati Devi, presumably on the ground of adultery, etc. Two revisional applications were filed in this Court one by the present Petitioner and the other by some agent on behalf of Kayan and Bhagawati Devi. The earlier Petitioner of the accused was for staying the proceedings pending at Alipore (in the present case) till the disposal of the Barrack-pore case. The Rule was ultimately discharged. The application in favour of Kayan and Bhagawati Devi mentioned above was dismissed and the relevant Rule discharged on December 18, 1960. These details will be necessary to show some of the elements of delay.

The main grievance of Mr. Mookerjee, learned Advocate for the Petitioner, is that the opposite party had not mentioned the names of these two witnesses in the petition of complaint and that for the first time Kayan and Bhagawati Devi were cited as witnesses on March 20, 1959 which was the 11th date of the bearing of the case. Meanwhile, several applications had been filed by the complainant opposite party for citing witnesses in driblets and the prayers were allowed. But even in these applications the names of the two witnesses concerned were not mentioned. The main question is whether the order of the1 learned Magistrate for warrant of arrest on May 27, 1959, and order for Proclamation and Attachment on June 24, 1959, were illegal. The next question that will come up for consideration in this connection will be whether the issue of these processes amounted to an abuse of the process of the court, Mr. Mookerjee has referred to Section 204(1A) of the Code of Criminal Procedure which lays down "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 point, however, was considered in a case of this Court, Syama Charon Saha v. Nagendra Nath Rakshit (1956) 61 C.W.N. 192. It was held inter alia that the complainant was not to be tied inexorably with the list of witnesses mentioned in Section 204(1A) of the Code of Criminal Procedure in view of Section 252(2) of the Code, so far as the trial of the case was concerned. Section 252(2) of the Code of Criminal Procedure is to the following effect:

The Magistrate shall 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 and shall summon to give evidence before himself such of them as he thinks necessary.

In the instant case the complaint wag examined, in course of trial on March. 20, 1959, after many other witnesses had been examined. Consequently, the stage for ascertaining the names of witnesses from the complainant himself directly, did not arise before March 20, 1959, although certainly, the complainant could be called upon to furnish a list of witnesses or the complainant himself might furnish earlier such a list of witnesses. Further the word "otherwise" is significant. For apart from the complainant, the learned Magistrate could ascertain the names of, the likely witnesses. That certainly gives a wide discretion to the Magistrate. What cannot be claimed as a matter of right, may be covered by this discretion any aspect of the magisterial power. This point was referred to in Rahat Ali and Ors. v. Muhammad Murad (1938) 39 G.L.J. 62, Section 256 of the Code of Criminal Procedure refers to Post Charge matters. It speaks inter alia of "remaining "witnesses". The object of Section 256 of the Code of Criminal Procedure prima facie appears to be that the prosecution should not be allowed to add to the list of the witnesses at any stage subsequent to the framing of the charge. Section 252 of the Code of Criminal Procedure is confined to matters prior to the framing of the charge. If as has been indicated above, discretion rests with the Magistrate to summon further witnesses, can it be said that this discretion can be exercised only on one occasion and not on several occasions. Section 252(2) of the Code of Criminal Procedure is not specific on this point, but the powers given to the Magistrate are very wide. In the absence of any word curtailing the discretion of the Magistrate it would not be proper to hold that this discretion can be used once by the Magistrate and not on more than one occasion. In AIR 1940 390 (Nagpur) , it was held inter alia that the power given to the Magistrate u/s 252(2) of the Criminal Procedure. Code, may be exercised from time to time as the occasion requires.

Apart from the legality of the question, the Court has to consider whether in the circumstances, there has been any abuse of the process of the court. Some elements of delay have already been indicated above. For some time, on medical certificate, the complainant opposite party seems to have been absent from the Court. Mr. Dutt, learned Advocate for the opposite party, has drawn the attention of the court of the fact that in connection with the Barrackpore case, Bhagawati Debi made a statement which was recorded u/s 164 of the Criminal Procedure Code. Kayan was the complainant in the earlier case against both the Petitioner and the opposite party and others. The petition of complaint filed by him would no doubt be a matter of some importance, so also the statement made by Bhagawati Devi, provided these would be relevant. Bhagawati Devi''s evidence may not carry much weight, because she may perhaps be deemed prima facie to be an accomplice. But all the same her evidence would be relevant. It was from the father''s custody, if Kayan is to be believed, that Bhagawati Devi was taken away by the accused. Consequently it cannot be said that an application to examine these two witnesses would be frivolous or vexatious. That is a matter primarily concerning these two persons. An application had already been filed on their behalf by somebody and their relevant Rule was discharged, as stated above. Whether the opposite party would not get any thing out of these two witnesses remains to be seen. It is true that in a case of this description where, particularly, adultery is alleged, really speaking though not technically so the wife stands on the same footing as a co-accused and it may be true that the complainant stands to benefit from the evidence that might be recorded here so far as the divorce case goes. But since facts have got to be ascertained, it cannot be said prima facie that the prayer for summons was made only in order to humiliate her or her father Kayan.

Unquestionably there has been delay, and the opposite party had been responsible party for this. On several occasions in the past, he had the opportunity of citing the names of these two witnesses but he did not, Mr. Mookerjee''s grievance is that the learned Magistrate acted as a sort of automaton and that he did not apply his mind judicially to the facts and circumstances of the case, when he issued processes in the first place and thereafter Warrant and finally proclamation and Attachment. But since the law gives him this discretion, this Court should not seek to curtail that judicial discretion specially in the circumstances of the case. It will be up to the learned Magistrate to hear the case expeditiously. Already twenty-two witnesses have been examined and prima facie there should be sufficient evidence on record for the purpose of framing a charge, if any, the learned Magistrate; should apply his mind to this aspect of the case and fix a date appropriately and conveniently. Thereafter, the case, if necessary, should be proceeded with, with promptitude. That, however, will be a matter entirely for the learned Magistrate to decide and thia Court will not fetter his hands by laying down any specific period during which the case should be finally decided.

With the above observations the Rule is discharged.