The prosecution is not precluded from calling any witness at the enquiry or trial who has not been examined by the Police orally or whose statement has not been reduced into writing under Section 161 (3) of the Cr. P. C. The prosecution cannot be confined to the evidence of only those persons whose statements had been reduced into writing under Section 161 (3 ). Nor can it be confined to the list of witnesses which it had filed along with the charge-sheet The prosecution is free to examine all such witnesses as may be produced in support of the prosecution. The Magistrate has ample powers under Section 540 of the Code to summon any material witness or examine any person who is present in the Court.

( 1 ) THIS is a revision petition directed against the order of the Additional District Munsif-Magistrate, Srikakulam given on 26/07/1966 whereby the learned Magistrate directed the issue of summonses in the names of eight witnesses whom the prosecution wanted to examine. It appears that the Station House Officer, Srikakulam Town filed a charge-sheet against the accused under Section 304-A, I. P. C. Along with the charge-sheet, a list of witnesses also was filed according to which three witnesses were mentioned as eye witnesses. One of them died before the commencement of the trial. The prosecution therefore produced P. WS. 2 and 3, the other eye witnesses. They however were declared hostile and permission was granted to the prosecution to cross-examine them.

( 2 ) SUBSEQUENTLY, the prosecution filed an application under Sections 251-A (7) and 540, Cr. P. C. seeking permission to examine eight more witnesses cited in the application. It was stated that out of the eight witnesses, witnesses mentioned in Serial Nos. 1 to 4 were examined in the course of investigation while the remaining were examined by the police only after P. W. 2 had turned hostile in the Court

( 3 ) THE petition was opposed by the accused. The principal contention was that since the names of the four witnesses who where examined during the course of investigation were not included in the list filed along with the charge-sheet and the remaining four witnesses were examined only after the charge-sheet was filed, the prosecution had no right to cite these witnesses and the Court cannot grant any permission to examine them as witnesses.

( 4 ) THE learned Magistrate allowed the petition holding that Section 540 empowers the prosecution in the circumstances of the case to examine these witnesses and directed the issue of summonses to them. It is this order which is now challenged in this revision petition.

( 5 ) THE principal contention of Sri. E. Ayyapu Reddy, the learned counsel for the petitioner, is that since the names of four witnesses did not find place in the list filed along with the charge-sheet and the other four were not examined during the investigation prior to the filing of the charge-sheet, these witnesses could not have been directed to be examined by the Munsif-Magistrate. In support of this contention), the learned Advocate relied upon in re, N. Krishnaswamy, AIR 1956 Mad 592.

( 6 ) NOW, under Section 161, Cr. P. C. , any Police Officer referred to in that section may examine orally any person supposed to be acquainted with the facts and circumstances of the case. Such a Police Officer may reduce into writing any statement made to him in the course of an examination. It is thus manifest that under Section 161, it is not at all necessary that the Police Officer should record any statements when making an investigation and indeed the law does not require any statement to be recorded by the Police in an investigation. It is left to the discretion of the investigating officer to examine orally any person or reduce his statement into writing. It is only when he decides to reduce into writing any such statement that Section 162 (1) requires that no such statement reduced into writing shall be signed by the person making it and it is only to such a statement that the proviso to Section 162 (1) refers to. It is not therefore obligatory on the part of the investigating officer to reduce into writing any statement made to him in the course of the investigation, nor is it necessary that he should have examined any person orally or should have reduced such persons statement into writing who is later going to be cited as a witness for the prosecution.

( 7 ) WHAT all Section 173 (4) provides for is that in order to safeguard the interests of the accused persons it directs the Police Officers and the Magistrates before whom proceedings are brought to see that all the documents necessary be given to the accused persons and all the information for