Holding

A magistrate may, at his discretion and before closing the trial, summon witnesses listed in a supplementary list filed by the complainant under Section 244(2) Cr.P.C., provided the exercise of that discretion advances the cause of justice.

Summary

The appellant filed a complaint under IPC sections 323, 406, 498A and the Dowry Prohibition Act. Several witnesses could not be examined during the trial, and the complainant later filed a supplementary list of five witnesses under Section 244(2) Cr.P.C. after the charge was framed. The Sub‑Divisional Judicial Magistrate allowed the summons, but the Patna High Court quashed the order, holding that the supplementary list was not permissible because the names were not in the original list required by Section 204(2). On appeal, the Supreme Court held that a magistrate has discretion, before closing the trial, to summon additional witnesses if it advances the cause of justice, provided the discretion is exercised judiciously and not to harass the accused. Consequently, the High Court’s order was set aside and the magistrate was directed to examine the supplementary witnesses. The Court emphasized that the discretion under Sections 244(2) and 246(6) Cr.P.C. is wide but must be exercised for bona‑fide purposes.

Issues considered

Whether a complainant may file a supplementary list of witnesses under Section 244(2) Cr.P.C. when the names were not included in the original list filed under Section 204(2).
Whether the magistrate’s discretion to summon additional witnesses under Sections 244(2) and 246(6) Cr.P.C. is limited by the original list of witnesses.

Legislation cited

Code of Criminal Procedure, 1973s. 200, s. 203, s. 204(2), s. 244(2), s. 246(6), s. 256

Subjects

supplementary list of witnessesmagistrate discretionCr.P.C. 244Cr.P.C. 246criminal trial procedurecomplaint caseevidence

Judgment

[2008] 9 S.C.R. 64

A SAYEEDA FARHANA SHAMIM
V.
STATE OF BIHAR & ANR.
(Criminal Appeal No. 928 of 2008)
MAY 16, 2008
B
[A.K. MATHUR AND AFTAB ALAM, JJ.]

Code of Criminal Procedure, 1973 - ss. 244 (2) and 246
(6) - Supplementary list of witnesses - Furnishing of by com-
e plainant - Permissibility - Held: The Magistrate has discre-
tion to summon the witnesses, before closure· of trial, if it ad-
vances the cause of justice - However, the discretion to be
used in appropriate cases for reasons to be recorded.·
The question for consideration in the present appeal
D is whether supplementary list of witnesses uls 244 Cr.P.C. ,
can be furnished by the complainant, in respect of the _.,
witnesses whose names did not appear in the list as re-
quired u/s 204 (2) Cr.P.C.
Allowing the appeal, the Court
E
HELD: The Magistrate has discretion, before he
closes the trial, to summon the witnesses if it advances
the cause of justice. However, the discretion which has
been conferred on the Magistrate under Section 244(2)
F and Section 246(6), Cr.P.C. should be used in appropriate y
cases for reasons to be recorded. The discretion should
not be used fancifully and for a mala fide purpose to ha-
rass the accused, but in case it is found that in fact the
application for summoning the additional witnesses is
G made for bona fide purpose and to substantiate the alle-
gations made in the complaint, then the Magistrate may
exercise such power in appropriate case. (Para 5] (69-G,H,
70-A-C]
Jamuna Rani v. S.Krishna Kumar and Ors. 1993 Cr.L.J .
H • 64
SAYEEDA FARHANA SHAMIM v. STATE OF 65
BIHAR & ANR. [AK. MATHUR, J]

32; Nawal Kishore Shukla and Ors. v. State of UP and Anr. A
1992 Crl. L.J. 1554; S. Vvivekanantham v. R. Viswanathan
and Ors. 1977 Crl .. L.J. 425; V Ratna Shenoy v. S. A.Prabhu
and Ors. AIR 1967 Kerala 233; State of Bombay v. Janardhan
and Ors. AIR 1960 _Bombay 513; Somasundaram v. Gopa/
and Anr. AIR 1958 Madras 341 - approved. B
Hari Pada Banerjee v. Hem Kanta Sen AIR 1969
Calcutta 429 - disapproved.

CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 928 of 2008 c
From the Judgment and final Order dated 13.12.2006 of
the High Court of Judicature at Patna in Crl. Misc. No. 23629/
2005
Anil K. Jha and Alka Jha for the Appellant.
D
Gopal Singh, Kumud Shekhar, S.W.A. Qadri and Lakshmi
Raman Singh for the Respondents.
The Judgment of the Court was delivered by
A.K. MATHUR, J. 1. Leave granted. E
2. This appeal is directed against the order dated
13.12.2006 passed by learned Single Judge of the Patna High
Court whereby the learned single Judge of the High Court has
y quashed the order passed by the learned Sub-divisional Judi-
cial Magistrate, Bhagalpur (hereinafter to be referred to as the F
S.D.J.M.) in Complaint Case No.1115 of 1999 by which the
learned S.D.J.M. allowed prayer of the complainant by order
dated 25.5.2005 to examine five witnesses named in the supple-
mentary list filed by the complainant. A complaint was filed un-
der Sections 323, 406, 498A of the Indian Penal Code and un- G
der Sections 3 & 4 of 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
H
66 SUPREME COURT REPORTS [2008] 9 S.C.R.

A 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
B the Code of Criminal Procedure but he died on 9.1.2001. There-
fore, 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 wit-
C nesses 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 exam-
ine further witnesses before the charge on 3.1.2003. The ac-
cused persons filed a rejoinder on 5.1.2003. However, the
S.D.J.M., Bhagalpur rejected the petition filed on behalf of the
0 complainant to examine further witnesses before charge by its
order dated 1.5.2003. The S.D.J.M. framed the charge on
30.8.2004. Then again on 24.1.2005 the complainant filed a
petition before the S.D.J.M., Bhagalpur and prayed for issu-
ance of summons to the witnesses whose names appeared in
E the list attached with the application. That application was filed
by the complainant after the charges were framed and the wit-
nesses were cross-examined after the charge. As the rest of
the witnesses were gained over and they did not support the
case of the complainant, therefore, a supplementary list of wit- y
F nesses was attached to the application filed by the complain-
ant namely, (i) Md. Wajahat son of Md.llyas, resident of Balha
Narayanpur, P.S. Bhawanipur, District Bhagalpur, (ii) Md. Zafar
son of late Habib, (iii) Bibi Afsana Shamim wifeof late Saiyad
Abdul Shamini, (iv) Pappu alias Ram Chandra Tiwari son of
G Basahan Tiwari and (v) Md. Rasid son of lat Md. Safi, all of
Mahalia Barahapura, P.S.lshakchak, District. Bhagalpur. A re-
joinder was filed to the petition filed by the complainant. How-
ever, on 25.4.2005, learned S.D.J.M. after hearing both the
parties allowed the application filed by the complainant and the
H complainant was directed to examine all the. five witnesses
SAYEEDA FARHANA SHAMIM v. STATE OF 67
BIHAR & ANR. [A.K. MATHUR, J]

whose names appeared in the list. The S.D.J.M. found that this A
was a case of torturing a married woman and demanding dowry
which are continuing offences, therefore, some more persons
can throw light on the occurrence which may help the S.D.J.M.
to arrive at a just decision and do proper justice to the parties.
This order passed by the S.D.J.M. on 25.4.2005 was challenged B
by the respondents by filing a petition before the High Court.
Meanwhile, on 16.11.2005 Md.Zafar was examined in chief and
he was also cross-examined later on 23.1.2006. On 30.3.2006
Md.Razi was examined and he was also cross-examined by
c
the defence on the same day. Therefore, out of the five witnesses
two witnesses were examined and three witnesses remained
to be examined. Meanwhile, on 13.12.2006 the petition filed by
the respondents before the High Court was allowed and the
order of the S.D.J.M. passed on 25.4.2005 in Complaint case
No.1115 of 1999 was quashed. Learned Single Judge of the D
High Court took the view that the names of these witnesses ·
were not given as required under Section 204(2) of the Code of
Criminal Procedure (hereinafter to be referred to as Cr.P.C.).
Therefore, at a later stage supplementary list of witnesses un-
der Section 244(2) Cr.P.C. could not be furnished to be exam-
ined. Learned Single Judge accordingly, allowed the petition E
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 F
Court. The procedure as to how to proceed on a complaint filed
before the Magistrate has been dealt with in Chapter XV. Un-
der Section 200, Cr.P.C. the Magistrate taking cognizance of
offence can examine on oath the complainant and the wit-
nesses, if any, and that shall be reduced in writing and in case G
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. Thereaf-
H
68 SUPREME COURT REPORTS [2008] 9 S. C.R.

A ter, 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
support of the complaint. Under Section 246, Cr.P.C. if the ac-
cused is not discharged, then the Magistrate will proceed and
B take the evidence of the remaining witnesses for the prosecu-
tion. Now, the question is whether a supplementary list of wit-
nesses can be furnished by the complainant and the Magis-
trate can summon those witnesses to be examined. The ques-
tion is whatever witnesses who have been examined under Sec-
C tion 244,Cr.P.C. the Magistrate cannot entertain any further list
of witnesses to be examined by the complainant to substanti-
ate his allegation in the complaint. It is true that under Section
244, Cr.P.C. ifthe charge is framed, then the prosecution has to
examine the evidence produced by it in support of its case. Af-
D ter that the accused will have the right to cross-examine and the _
matter will proceed to be decided under Section 246. But be- 1

fore the matter is decided and during the pendency of the trial
can the Magistrate entertain any petition filed by the prosecu-
tion for examining additional evidence in support of its case.
E 5. Learned counsel for the appellant invited our attention
to the following decisions of various High Courts.
i. 1993 Cr.L.J. 32
Jamuna Rani v. S.Krishna Kumar & Ors.
y
F ii. 1992 Crl. L.J. 1554
Nawal Kishore Shukla & Ors. v.
State Gf U.P. & Anr.

G iii. 1977 Crl.L.J. 425
iii
t~
S.Vvivekanantham v.
I,- I
R.Viswanathan & Ors.
iv. AIR 1967 Kerala 233 w
H
SAYEEDA FARHANA SHAMIM v. STATE OF 69
BIHAR & ANR. [A.K. MATHUR, J]

V.Ratna Shenoy v. A
S.A.Prabhu & Ors.
v. AIR 1960 Bombay 513
State of Bombay v. Janardhan & Ors.
B
vi. AIR 1958 Madras 341
K.Somasundaram v. Gopal & Anr.

Before, we refer to decisions of various High Court, it may
be mentioned here that the discretion of the Magistrate is no c
where fettered by any of the provisions contained in Cr.P.C.
Section 244, Cr.P.C. reads as under:
" 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, D
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 E
prosecution, issue a summons to any of its witnesses
directing him to attend or to produce any document or
other thing."
The expression, used as 'the Magistrate shall proceed to
hear the prosecution and take all such evidence as may be pro- F
duced in support of the prosecution'. Similarly, sub-section :(6)
of Section 246, Cr.P.C. reads as under:
"(6) The evidence of any remaining witnesses for the pros-
ecution shall next be taken and after cross-examination and re-
examination (if any); they shall also be discharged." G
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 H
70 SUPREME COURT REPORTS [2008] 9 S.C.R.

~
A 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
B fide purpose to harass the accused. It is quite possible
that sometimes when the complainant fails to substantiate
f
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
c in case it is found that in fact the application for summoning
the additional witnesses is made for bona fide purpose
and to substantiate the allegations made in the complaint,
then the Magistrate may exercise such power in
appropriate case.
D 6. Learned counsel for the appellant invited our attention i
to the decision of the Andhra Pradesh High Court in Jamuna
Rani (supra) wherein learned Single Judge has referred to vari-
ous decisions of different High Courts i.e. Madras, Bombay and
Allahabad High Courts and held that the Court has discretion
E and it is not confined to the witnesses mentioned in the list ap-
pended to the complaint but it refers to any other witness men-
tioned in a subsequent application filed before the discharge
order is passed by the Magistrate. It was held by the Andhra
Pradesh High Court in the case of Jamuna Rani (Supra) as
'j
F under:
"Taking into account the views expressed by the Madras,
Bombay and Allahabad High Court and on interpreting '
all such evidence' in S. 244(1), I feel that it does not limit
to the witnesses mentioned in the list appended to the
G complaint but it refers to any other witness mentioned in
a subsequent application filed before the discharge order ;:•
is passed by the Magistrate." \.-

'~

H
Similarly, the Allahabad High Court in Nawal Kishore
Shukla & Ors (supra) has taken an identical view. Learned Single •
'
~'. ;;_
SAYEEOA FARHANA SHAMIM v. STATE OF 71
BIHAR & ANR. [A.K. MATHUR, J]

Judge of the High Court held as follows : A
" As regards the order permitting the complainant to
examine a witness, not named in the list of witnesses, the
learned Magistrate could have done so in the
circumstances of the case. It was not necessary that al the
witnesses named in the list of witnesses should have been B
~xamined before such a permission could have been
granted. The witness was in attendance and the
prosecution evidence was being recorded under Section
244, Cr.P.C. The order by the learned Magistrate
permitting the complainant to examine the witness cannot C
be said to be illegal or unjust."
Similar view was taken by the Madras High Court in
S.Vivekanantham (supra). In this case learned Single Judge
observed as follows:
0
"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. Nowhere the section lays down that
the complainant will not be entitled to file a supplemental E
list of witnesses nor the Court empowered to entertain
such a list and examine one or more of the witnesses
cited therein. 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 F
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 G
such examination. To hold otherwise would actually lead
to grave injustice and hardships to complainants."
Learned Single Judge has foJlowed the decision of the
Division Bench of the Madras High Court in K.Somasundaram
(supra) which reads as under: H
72 SUPREME COURT REPORTS [2008] 9 S.C.R.

A "The list filed under S.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 S.204(1) Crl.
B 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 S.244(1), and S.244(2) and S.252(2)
Cr.P.C. shows the ample powers of the Court in this
c respect."
Similar view has been taken by the learned Single Judge
of the Bombay High Court in State of Bombay v. Janardhan &
Ors.( supra) wherein it has been held as follows:
"After the insertion of S.204(1A), S.256 has to be read
D
along with S.252 also with section 204(1A). Therefore, in i
cases instituted otherwise on a police report the
complainant is restricted to the examination of witnesses
whose names are given in the list under section 204(1A).
At the same time in a proper case the list can be added
E to with the permission of the Court. 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 interests of justice."

F Similar view has been taken by learned Single Judge of •
the Kerala High Court in V.Ratna Shenoy (supra). Relying on
the decision of Madras High Court in K.Somasundaram (su-
pra), the learned Single Judge of the Kerala High Court ob-
served as follows:
G · >'I cannot agree with the view that the word 'remaining
witnesses' involves only those that are left out from the first

-
'list. It would be open to the learned Magistrate to examine >-
.witnesses and to admit any essential documents which
the prosecution wishes to produce."
\
H
SAYEEDA FARHANA SHAMIM v. STATE OF 73
. BIHAR & ANR. [A.K. MATHUR, J]

The Learned Single Judge observed that the expression A
appearing in 'remaining witnesses' should be given wide inter-
pretation.
7. As against this,' our attention was invited to a decision
of the Calcutta High Court in Hari Pada Banerjee v. Hem Kanta
Sen (AIR 1969 Calcutta 429). Learned Single Judge of the B
}r Calcutta High Court has held as follows:
"The expression 'remaining witnesses' in Section 256 should
not be given an unnecessarily wide interpretation and it means
witnesses originally included in the list submitted under c
Section 252(2) but not subsequently examined."
But as against this, the consensus opinion of the High
Courts of Andhra Pradesh, Kerala, Madras, Bombay and
Allahabad appears to be more sound.
D
t 8. In view of the consensus of the opinion which has
emerged from various decisions of the High Courts appears to
be that the power of the Magistrate should not be fettered either
under Section 244 or under sub-section (6) of Section 246 of
the Cr.P.C. and full latitude should be given to the Magistrate to
exercise the discretion to entertain a supplementary list. But as
E
we have already added a word of caution that while accepting
the supplementary list the Magistrate shall exercise its discre-
tion judiciously for the advancement of the cause of justice and
not to give a handle to the complainant to harass the accused.
"I F
9. As a result of our above discussion, the view taken by
learned Single Judge of the Patna High Court cannot be sus-
tained and consequently, the appeal is allowed and the order
passed by the learned Single Judge dated 13.12.2006 is set
aside and it is for the Sub-Divisional Judicial Magistrate, G
Bhagalpur to examine the remaining witnesses from the supple-
mentary list given by the complainant and then to proceed ac-
'I
cording to law.
K.K.T. Appeal allowed.
H