P L D 1963 Dacca 360 (PLP)

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. Case remanded.