In the High Court of Judicature Andhra Pradesh at Hyderabad

(BEFORE G. RADHAKRISHNA RAO, J.)

Jamuna Rani … Petitioner;

Versus

S. Krishna Kumar & Others … Respondents.

Crl. R.C No. 280 of 1992

Decided on September 18, 1992

ORDER

1. The Criminal Revision Case No. 280 of 1992 is filed by the petitioner against the order of
discharge passed in C.C No. 19 of 1990 on the file of the J.F.C.M Pathikonda, Dt. the 31st of March,
1992. The Criminal Petition on, Crl. P. No. 1097/1992 is filed by the petitioner against the order of
dismissal passed in Crl. R.P No. 11 of 1991 by the III Additional Sessions Judge, confirming the
order passed in Crl. M.P No. 106/91 in C.C No. 19/1990 passed by the J.F.C.M Pathikonda. The
facts in brief are as follows:

2. A private complaint was filed by the complainant (wife) against the accused (husband) in the

court of the J.F.C.M Pathikonda, for the offence under Section 494 read with 109 I.P.C A sworn
statement of the Complainant was recorded on the date of the complaint, i.e on 26.2.90 and on the
same day the complaint has been taken on file as C.C 19/90 and process was issued for the
appearance of the accused.

3. The facts which lead to the filling of the above complaint was that on 26.2.1981 the first
respondent married the complainant according to Hindu rites and rituals at Arya Vysya Choultry in
Kurabalakota, Madanapally taluk.

4. They lead married life for a short period. Thereafter, she was harrased by respondents 1, 3
and 4 for not bringing dowry of Rs. 25,000/- and she was forcibly left in her parents house. As she
had no means to maintain herself, she filed M.C 4/83 on the file of J.F.C.M Kuppam and she was
awarded maintenance. The first respondent also filed a petition for divorce against the complainant
which is pending. Taking advantage of the official position of respondent No. 3 the first respondent
married the second respondent on 15.7.89 while the first marriage was still subsisting. Therefore, the
complainant filed the above complaint against the husband for the offence under Section 494 I.P.C
and against respondents 2 to 5 for the offence punishable under Sections 494 read with 109 I.P.C

5. After the process was issued for the appearance of the accused, all the witnesses who were
mentioned in the list appended to the complaint were examined and the last witness appended to
the list was examined on 5.2.91 On the same day, i.e on 5.2.91 before the order of discharge has
been passed by the Magistrate, a supplemental list of witnesses consisting of four persons, with an
application under Section 311 Crl. P.C was filed to issue summons to those witnesses also. The
learned Magistrate registered the same as Crl. M.P No. 106/91 and he held that either the
complainant or the accused have no power or right to request the court to examine witnesses under
Section 311 Cr. P.C He further held that the power to summon witnesses under this Section is a
special one and it is quite different from the power under other Sections of the Code, on the
application of the parties who have a right to process. The parties to a case cannot dictate to a Court
over the summoning of the witnesses under this Section and that the discretion to summon vests
solely in the court alone and no compulsion can be placed upon any court to summon a witness
particularly in a case where the court has come to the conclusion that the evidence of the witness
concerned would not be necessary. He further held while considering the scope and ambit of
Section 244 Crl. P.C that there is no provision under Section 244 Crl. P.C to file a second list of
witnesses at the stage of enquiry before framing the charge instituted otherwise than on a police
report. For the above reasons, he dismissed the petition holding that the same is not maintainable.
Consequent on passing of this order a discharge order has been passed against which the petitioner
filed Crl. R.C 280/92 in this Court.

6. Now the main point that has to be decided in this case is, when a complaint has been filed
listing out certain number of witnesses, whether the complainant can be permitted to submit
a further list of witnesses before the order of discharge is passed and whether the same can
be entertained by the Magistrate. The language that has been adopted in Section 244 Crl.
P.C is very clear. Section 244 of the Criminal Procedure Code reads thus:

“244. Evidence for Prosecution: (1) When, in any warrant-case instituted otherwise than on a
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 summon to any of its
witnesses directing him to attend or to produce any document or other thing.”

7. On an identical point when it had come up for consideration before the Madras High Court, the
learned Judges held in Somasundaram v. Gopal, (1) AIR 1958 Madras 341 that 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) and Section 244(2) and Section
252(2) Crl. P.C shows the ample powers of the Court in this respect.

8. The same point has again been considered by the Madras High Court in S.
Vivekanatham v. R. Viswanathan, (2) 1977 Crl. L.J 425 and the learned Judges reiterated the same.
In that case also the Complainant furnished a list of 4 witnesses. He gave up the examination of two
witnesses in that list and later he requested the court to summon ten witnesses and have them
examined under Section 311 Crl. P.C Realising that the Court may not be interested to summon
those persons and examine them as Court witnesses, the petitioner withdrew that petition and filed
another petition praying for permission to cite those ten witnesses as additional witnesses on the
complainant's side and to have them examined. The learned Judges held that 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. They further held as follows:

“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
otherswise would actually lead to grave injustice and hardships to complainants.”

9. The same is the view taken by the Bombay High Court in State of Bombay v. Janardhan,
(3) AIR 1960 Bombay 513. But the learned Judges went further and put a rider saying that 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 interest of justice. But what is contemplated under Section 204(1) is
only giving out a list of prosecution witnesses by the complainant and if in the opinion of the
Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, he shall issue
summons or warrants as the case may be. But Section 244(1) says that the Magistrate shall take all
such evidence as may be produced in support of the prosecution to substantiate the charge,
which means that it does not confine only to the list of witnesses mentioned at the earliest point of
time. The Court has got ample power, before the order of discharge is passed, to entertain the
application of the complainant with regard to the examination of the witnesses sought to be examine
in support of the charge. Not only the persons listed in the complaint but also any other person who
has got knowledge or who has got something to say about the complaint alleged therein, can be
examined if such an application is made by the complainant before the order of discharge is passed.
So, the Magistrate at the earliest point of time has no discretion to dismiss the application to
examine some more witnesses other than the persons mentioned in the list. To make it more clear
the complainant has got absolute right to produce the evidence in support of the charge at any time
before the discharge order is passed, and for that purpose he can make an application to examine
some more witnesses apart from the witnesses mentioned in the list appended to the complaint.
While considering Section 244 Cr. P.C the Allahabad High Court in Nawal Kishore Shukla v. State of
U.P, (4) 1992 Crl. L.J 1554 held that the Court can permit examination of the witnesses not
mentioned in the list and that it is not necessary that all the witnesses named in the list of witnesses
should have been examined before such a permission is granted. Taking into account the views
expressed by the Madras, Bombay and Allahabad High Courts and on interpreting ‘all such
evidence’ in Section 244(1), 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.

10. The other ground for rejection is that the application has been filed under Section 311 Cr. P.C
and that it ought to have been filed under Section 244 Cr. P.C Mere quoting of a wrong provision of
law does not mean automatic dismissal, particularly, when it is made clear in the affidavit that the
complainant wants to examine some more witnesses other than those mentioned in the list and also
when the averments in the affidavit discloses that a prima facie case is there. So, the order of
rejection that has been passed on the application for examination of the witnesses mentioned in the
supplementary list is set aside. As this Court found that the petitioner has got a right to examine
some more witnesses other than those mentioned in the list appended to the complaint and the court
is bound to summon the witnesses, the order of discharge which is a consequential order has to be
set aside and it is accordingly set aside. The Lower court is directed to proceed from the stage of the
application made by the complainant for examining the witnesses mentioned in the supplementary
list and dispose of the case in accordance with law.
 11. In the result, both the criminal petition, Crl. P. No. 1097 of 1992 and the Criminal revision
case, Crl. R.C No. 280 of 1992, are allowed.