IMPORTANT POINT
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.

JUDGMENT

1. Leave granted.

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 quashed the order passed by the learned Sub-divisional Judicial Magistrate, Bhagalpur (hereinafter to be referred to as the 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 supplementary list filed by the complainant. 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. 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 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 issuance of summons to the witnesses whose names appeared in the list attached with the application. That application was filed by the complainant after the charges were framed and the witnesses 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 witnesses was attached to the application filed by the complainant namely, (i) Md. Wajahat son of Md.Ilyas, resident of Balha Narayanpur, P.S. Bhawanipur, District Bhagalpur, (ii) Md. Zafar son of late Habib, (iii) Bibi Afsana Shamim wifeof late Saiyad Abdul Shamim, (iv) Pappu alias Ram Chandra Tiwari son of Basahan Tiwari and (v) Md. Rasid son of lat Md. Safi, all of Mohalla Barahapura, P.S.Ishakchak, District. Bhagalpur. A rejoinder was filed to the petition filed by the complainant. However, on 25.4.2005, learned S.D.J.M. after hearing both the parties allowed the application filed by the complainant and the complainant was directed to examine all the five witnesses whose names appeared in the list. The S.D.J.M. found that this 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 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 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.