TMI Blog2008 (5) TMI 720X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Prevention of Dowry Act. Therefore, the limited 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .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 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion'. 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 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 substan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 Section 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 Section 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 Section 244(1), an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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