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Criminal Revision No. 52 of 1962, decided on 11th January 1962.
S. 540‑Powers of Magistrate discretionary‑Proper and judicial application of mind in exercise of discretion necessary‑Magistrate declining to summon witnesses‑Order to indicate reasons.
Crown v. Rafiq Ahmed and another P L D 1555 Bal. IZ; Abdul Raz ake v. Haji Hussain Server A I R 1945 Nag. 286; Mohammad Akbar v: Akbao A I R 1948 Nag. 209; Saghir and another v. The State A I R 1958 All. 321; Heman Ram alias Hem Raj v. Emperor A I R 1945 Lah. 201 and Raghubir Sahaf v. Wali Hussain Khan A I R 1937 All. 189 ref.
Md. Nurul Islam for Petitioner.
S. A. Chowdhury for the Opposite‑Parties.
In this case a Rule was issued on the Deputy Commissioner of Chittagong to show cause why an order made by the trying Magistrate on 24‑4‑61, refusing to examine some witnesses on the prayer of the prosecution should not be set aside.
2. This revisional application arises out of a case instituted against the opposite‑parties under sections 147 and 323 of the Pakistan Penal Code. The occurrence took place on the 7th January 1960, and a first information report was lodged on the next day. The prosecution declared on 12‑4‑61, that the case was closed and in usual course 21‑4‑61, was fixed for argument. On that date an application was made to the learned trying Magistrate for examining three witnesses, namely, Sachindra Lal Dhar, Dr. Sadhan Chandra Mitra and Gopal Krishna Paidya who were mentioned in the charge‑sheet and also another witness, one Abdul Kasem who was a police constable alleged to have been present at the place of occurrence. Although the last named witness was summoned he was not examined by the pro secution.
3. The learned trying Magistrate in dealing with the applica tion for examination of the said four witnesses stated that he noticed that there was carelessness on the part of the Court Sub‑Inspector in not examining these witnesses and in the circumstances, he thought that the only course open to him was to consider whether these witnesses should be called under section 540 of the Code of Criminal Procedure and he fixed 24‑4‑61, for making the order in this respect and on 24‑4‑61, he rejected the prayer stating only that he did not find any good reason to summon these witnesses.
4. Mr. Nurul Islam, learned counsel for the petitioner has submitted that the learned Magistrate should have exercised his powers under section 540 and examined the witnesses who were already in the list and his failure to do so indicates that he did not apply his mind judicially. He also made a grievance that the learned Magistrate did not examine the remaining prosecution witnesses which he should have allowed to be done under section 256 of the Code of Criminal Procedure.
5. Mr. S. A. Chowdhury, learned Advocate for the opposite parties has strageously argued that section 540 gives a discretion to a Magistrate to summon a witness when it is necessary for a just decision in the case and this is a discretion given to a trying Magistrate to be exercised by him when necessary.
6. In this case, according to the learned Advocate, the Magistrate has exercised a discretion which should not ordinarily be interfered with. I may indicate at once that I am in agree ment with the submission made by the learned Advocate for the opposite‑party and I must say that this Court is always reluctant to interfere with a discretion so long as it is found that it has been exercised with due consideration of the facts and circum stances of the case before him. A Superior Court has, however, to be satisfied that there has been a proper and judicial applica tion of mind in the exercise of the discretion by a Court of law.
7. Mr. Nurul Islam, learned counsel for the petitioners relied on the case of the Crown v. Rafiq Ahmed and another (P L D 1955 B S 12), but it seems to me that it supports more the case of the learned Advocate for the opposite‑parties than that of the learned Advocate for the petitioner, for it says that summoning of witnesses under section 540, Cr. P. C., is discretionary under both the parts of the section. It is incumbent under the second part only if the Court is satisfied that evidence of a witness is essential. It proceeds to say that where both the Courts agree in refusing to summon a witness, the High Court will rarely interfere by way of revision. But it is to be noticed that it says that the trial Court is at liberty to decline summoning a witness if it is satisfied that examination of that witness is not essential.
8. In the instant case, order of 24‑4‑61, does not indicate if the Magistrate considered whether or not examination of the witnesses concerned is essential for a just decision of the Court.
9. The learned counsel for the petitioner has also relied on the case of Abdul Razake v. Haji Hussain Server (A I R 1945 Nag. 286), Hemyon, J., has observed in that case that where all the witnesses already cited in the list have not been examined although the complainant has announced the closure of his case after 3 of the 5 listed witnesses have been examined, it is open to him to apply to have the other two examined and to the Magistrate to accede to the application. But in respect of the list of new witnesses they cannot be said to be remaining witnesses under section 256 (1)' and they cannot be allowed to be examined. In that case a difference is made between the witnesses already in the list and the new witnesses and the learned Judge felt that so far as the old witnesses are concerned they can be claimed to be examined. It is, however, to be noticed that in the instant case the stage for invoking the aid of section 256 of the Code seems to be already over as the plain reading of the section indicates that it is to be done before the accused is called upon to enter upon his defence.
10. The learned counsel also placed his reliance in another judgment of Hemyon, J., in Mohammad Akbar v. Akbao (A I R 1948 Nag. 209). In that case also certain persons were undergoing prosecution for certain offences, and there were 13 witnesses who were cited by the prosecution, of whom only 4 were examined prior to the framing of the charge. After framing of the charges some prosecution witnesses had further been cross‑examined, and thereafter prosecution stated that it did not want the other prosecution witnesses to be examined. When the examination of the defence witnesses had ended, the case was closed for argument. There after the arguments were heard, a date was fixed for delivery of judgment and as the defence made a grievance that the prosecu tion had deliberately withheld evidence, processes were issued for the attendance of the remaining witnesses of the prosecution. It was held in that the Magistrate was, legally entitled to act as he did under section 540 of Code and it could not be said that he acted in order to fill up lacuna in the prosecution case. High Court, therefore, refused to interfere with the discretion exercised by the trying Magistrate. This case helps Mr. S. A. Chowdhury to establish if any authority for the proposition is at all necessary, that when a discretion is exercised judicially, it should not ordinarily be interfered with by the High Court. It also helps the petitioner in his submission that the learned Magistrate did not approach the question correctly. He should have considered whether further evidence was necessary for elucidation of some obscure points for whether it was necessary for a just and proper decision of the case. There should be no interference in exercise of discretion when indications can be had from the order that there was an application of mind to the considerations involved in the case.
11. Mr. S. A. Chowdhury also cited the case of Saghir and another v. The State (A I R 1958 ‑All. 321), where it was held as follows
The powers should be interpreted by the words used in the section itself: All that section 540 requires is that the Court shall examine any person if his evidence ‑appears to be essential to the just decision of the; case. I1 was further held:
It stands to reason that if the Appellate Court can examine necessary witnesses under section 428, ihe trial Court can also examine necessary witnesses under section 540."
These are, therefore, the considerations involved in the determination, of the question is a‑certain witness‑should be summoned in exercise of powers fonder section 540 of the Code.
12. The Full. Bench case of Heman Ram alias Hem Raj v. Emperor (A I R 1945 Lah. 201) wherein Munir, J., as his Lordships then was, observed as follows:
"When the case is not taken cognizance of on complaint, as for instance, where the Magistrate takes cognizance of an offence on a police report, the Magistrate must not only take all such evidence as may be produced by the officer conducting the prosecution but he must ascertain either by directly ques tioning the officer‑in‑charge of the prosecution if the prosecution is conducted by an officer or by referring to the police file the names of the persons who are acquainted with the facts of the case and who may be able to give evidence for the prosecution. The provision requiring the Magistrate to proceed in this manner is mandatory . . . . . . ."
His Lordship further observed as follows:
The mere existence of the list, however, does not relieve the Magistrate of the duty to ascertain the names of the witnesses under section 252 (2) and he is bound to question the complain ant or the officer‑in‑charge of the prosecution about the matter."
And then his Lordship approvingly notices a decision in the case of Raghubir Sahai v. Wali Hussain Khan (A I R 1937 All. 189).
13. It is, however, not clear from the records of this case whether at the appropriate stage it was ascertained by the learned Magistrate from the prosecution if it was, going to examine the remaining witnesses.
14. Be that as it may, the powers under section 540 of the Code of Criminal Procedure is, however, discretionary but the order dated 24‑4‑61, does not indicate proper application of the 9 mind as to whether the examination of these witnesses is essential for a just decision in the case or whether some obscure points can be clarified ‑by these witnesses.
15. In this case, the learned Magistrate has merely said that he does not find any good reason for examining these witnesses at this stage but has not given any indication as to what weighed with him in reaching this conclusion. It is therefore, not possible for me to be satisfied that he made a proper approach to the question. I would, therefore, send the case back to him ‑for re‑hearing of the matter. If he feels that the witnesses mentioned by the prosecution are not necessary for a joint decision in the case, he is free to reject the prayer. On the other hand, if he is justified that examination of these witnesses is essential for a just decision of the case, he is fully entitled to do so.
16. In the result, the Rule is made absolute and the order dated 24‑4‑61, is set aside and the case is sent back to the trial Court for determination of tie question of examining the witnesses as prayed for in the light of the observations made above Let the record of the case be sent down and the case be disposed of expeditiously.
K. B. A.
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