K.M. Mohamed Ali vs Assistant Commissioner of Income Tax

C. Shivappa, J.—The petitioner is challenging the order permitting the complainant to examine certain witnesses on the grounds that such

course has to be resorted to only after letting in evidence and invited my attention to the decision of this court in Srinivasan R. v. G. Shanmugha

Vaduvu 1983 LW (Crl.) 355. That was a case instituted on a private complaint. In that case, the complainant file a petition u/s 311, Criminal

Procedure Code, praying for examining a person as a court witness. In such a situation, this court took the view that it is mandatory to form an

opinion that the new evidence appears to be essential and just for the decision of the court. But, in the instant case, an additional list of witness has

been given by the complainant who seeks for issuance of summons. Section 244, Criminal Procedure Code, contemplates that the magistrate shall

proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution and 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. This

court in Vivekanantham v. Viswanathan 1976 LW (Crl.) 215 has taken the view that the restricted meanings of section 244, Criminal Procedure

Code, will defeat the very ends of justice and observed that section 244, Criminal Procedure Code, 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. All that the

section says is that... ""the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the

prosecution"". Accepting the contention of the petitioner amounts to narrowing the scope of section 244, Criminal Procedure Code, and would

actually lead to grave injustice and hardship to the complainants. I see no ground to set aside the proceedings. The petitions are, therefore,

dismissed.

Consequently, the Criminal Miscellaneous Petitions Nos. 3127 to 3129 of 1994 are also dismissed.