JUDGMENT - (1) The learned Sessions Judge of Nagpur has made this reference under S. 438, Cr. P. C. recommending that the order of Magistrate 1st Class, Saoner, rejecting an applcatin made by the complainant in a case against five accused persons underf Ss. 494 and 494 read with S. 109, I. P. C. to examine additional witnesses to prove that subsequent to the date of the second bigamous marriage of Guna, a child was born to Guna his second wife Milibai, on the ground that under S. 256, Cr. P. C. after the framing of the charge, the complainant could examine only such of the witnesses as had remained unexamined out of the list of witnesses given by the complainant. the learned Sessions Judge, however, took a different view and relying on Emperor v. Nagindas, AIR 1942, held that the words "any remaining witnesses" in S. 256, Criminal Procedure Code, are nor restricted to witnesses lef out from the list of witnesses given by the complainant and has made this reference to set aside the order of the magistrate.

(2) The question for determinuation I the meaning of the expression "any remaining witnesses" in S. 256, Criminal Procedure Code.

(3) The material poertions of the relevant Ss. 252 and 256 are as follows:

"252. (1) In any case instituted otherwise than on a police report, when the accused appears or is brought before a Magistrate such Magistrate shall proceed to hear the complainant (if any) and take all such evidence as may be produced in suppport of the prosecution:

. . . . . .

(2) The Magistrate shall ascertain, from te complainant or otherwise the names of any persons likely to be acquainted with acts of the case and to be able to give evidence for the prosecution, and shall summon to give evidence before himself such of them as he thinks necessary.

256. (1) If the accused refuses to plead, or does not plead, or claims to be tried, he shall be required to state, at the commencement of the next hearing of the case or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether he wishes to cross-examine any, and, if so, which of the witnesses for the prosecution whose evidence has been taken. If he says he does so wish, the witnesses named by him shall be recalled and, after cross-examination and re-examination (if any), they shall be discharged. The evidence of any remaining wtnesses for the prosecution shall next be taken, and, after cross-examination and re-examinatio (if any), they also shall be discharged. The accused shall then be called upon to enter up his defence and produce his evidence.

. . . ."

Under sub-section (2) of S. 252 it is for the Magistrate to ascertain from the complainant or otherwise the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution. In cases instituted on a police report, the names of the persons who appear to be acquainted with the circumstances of the case are stated in the charge-sheet filed under S. 173, Cr. P. C. In cases instituted otherwise on a police report, which are dealt with under S. 252 Cr. P. C. it is for the Magistrate to ascertain from the complainant or othersise the names of any persons likely to be acquainted with the facts of the case and to ve able to give evidence for the prosecution, and summon to give evidence before himself such of them as he thinks necessary. As regards remaining witnesses, it was, therefore provided in S. 256 that after the framing of the charge and taking the plea of the accused, and after further examination of the witnesses recalled by the accused, the evidence of the remaining witnesses for the prosecution should next be taken. The word used is "shall". The Magistrate is, therefore, bund to take the evidence of the remaining witnesses under S. 256 mean only the witnesses remaining out of the group of witnesses referred to in S. 256. If the words "any remaining witnesses" include any winesses not ascertained under S. 252, it would be

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