ORDER : This is a reference under S. 438, Criminal Procedure Code, by the learned Sessions Judge, Thana, for revising the order passed by the Judicial Magistrate, First Class, Shahapur, by which order the learned Magistrate held that the prosecution was debarred from tendering the evidence of tour witnesses whom the prosecution intended to examine as additional witnesses.

(2) The facts necessary to be stated in order to dispose of the present reference are as follows : The prosecution alleged that on or about 10-3-1956, several offences were committed by five persons who were picnicking in the compound of the Special Bungalow at Tansa reserved for the Special Engineer, Bombay Corporation. The police raided the aforesaid premises at about 8 P.M. on the aforesaid date and the prosecution case is that at that time those five persons were found in possession of a bottle of whisky and some glasses. The prosecution also alleged that two of the aforesaid five persons, who held permits for liquor, abetted each other by permitting one or the other of them to consume liquor in respect of which they held permits. On these allegations, several charge-sheets were sent against the aforesaid five persons. Out of them, seven cases were consolidated by the learned Magistrate and ordered to be tried as one case. It is not necessary for me at the present stage to mention the case numbers, the persons named as the accused in those cases and the sections under which they were being prosecuted by the prosecution. It is only enough for me to state that the consolidated case was being tried as a summons case. The plea of all the five accused persons was recorded on 4-9-1956 under S. 242, Criminal Procedure Code, all the five accused persons pleaded not guilty to the charges and claimed to be tried. The evidence of those persons whose names were mentioned as witnesses in the charge sheets was thereafter recorded. However, on 26-9-1956, the prosecution presented an application Ex. 22, by which it prayed for permission to examine the wit-nesses named therein. However, no orders were passed by the learned Magistrate on the aforesaid application. The defence urges that it had no knowledge about the presentation of the application Ex. 22 on the date on which it was presented, and that it came to know about the existence of the aforesaid application only on or about 15-1-1957 on which date another application, to be presently mentioned, was presented by the prosecution. It appears that the learned Magistrate did not pass any orders on the aforesaid application on 26-9-1956. However, the case was taken up for hearing on some subsequent dates and it appears that three out of the aforesaid new witnesses came to be examined during the course of the trial. These three additional witnesses were - (1) Raje, Police Photographer. (2) Shah, and (3) Demello. Raje was examined in chief on 27-10-1956 and cross-examined on 21-11-1956. The other two witnesses Shah and Demello were examined on 15-1-1957 and there was no cross-examination. On 15-1-1957, the prosecution presented another application by which it sought permission to examine one Shah. It appears that the prosecution when this application was presented, also, prayed that the three remaining witnesses mentioned in the previous application Ex. 22 should also be examined by the learned Magistrate. On this an objection was raised by the defence. The grounds of objection have been embodied in the reply dated 22-1-1957 which was given by the defence. On this the learned Magistrate fixed the case for hearing the arguments of both the sides regarding the examination of the aforesaid four additional witnesses. The arguments were heard on 29-1-1957 and the learned Magistrate decided on that day that the prosecution had no right to examine the aforesaid additional four witnesses. The defence attacked the prayer of the prosecution for an examination of the aforesaid four additional witnesses mainly on two grounds. The first

Click Here to Read the rest of this document