Panchapakesa Ayyar, J.- This case was directed by the Hon’ble the Chief Justice to be posted before a Bench on the recommendation of Ramaswami, J., that a Bench should hear and dispose of the matter in view of the then existing conflict regarding the legal questions involved in the case between the judgment of Somasundaram, J., in Ramanathan v. State1, and a judgment of a Bench of this Court in Tirmul Thevar v. State2, and the judgment of Ramaswami, J., in Arumugam Solathirayar v. Ponnalagu Pandrar3, and the Supreme Court Judgment indirectly bearing on the question in Narayana Rao v. Stale of Andhra Pradesh4. Since the reference was made to this Bench, as the learned Public Prosecutor has urged, Somasundaram, J., has, in view of the observations of the Supreme Court in the judgment cited above, modified his original view in Public Prosecutor v. Pachaiappa Mudaliar5, the judgment in which were delivered on 21st November, 1957 and remaining unreported till now. In this judgment Somasundaram, J., practically fell into line with the other rulings cited above which have held that the Court has got a discretion to summon witnesses not named in the list filed under section 204 (i-A) of the Criminal Procedure Code. So, at present, there is no real conflict regarding any of the three questions which arise in this case. Still, as a reference has been made to this Bench we shall answer the three questions.

The first question is whether a private complainant in a summons or warrant case, who has filed a list of prosecution witnesses under section 204(1-A), can file a supplemental list of witnesses later on, after giving up some or all the witnesses in the first list or in addition to them, and whether the Court can summon and examine them if it thinks fit. The second question is whether he can give up some or all of the witnesses cited in the first list, filed under section 204 (1) of the Criminal Procedure Code, and the third question is whether the Magistrate should apply his mind and direct issue of summons to the witnesses in the supplemental list, or whether he should automatically do so, without using his discretion whether to summon them or not, and whether notice should go to the accused with the list of witnesses named in the supplemental lists.

As the law stands at present, there is no conflict in this respect. The answer to the first question will be that the complainant can file a supplemental list or even a third list, etc., of prosecution witnesses, though he has filed a list of prosecution witnesses under section 204 (1-A) for the purpose of having summons or warrant issued against the accused. The phrase “take all such evidence as may be produced in support of the prosecution” in section 244 (1), and section 244 (2) and section 252 (1) and section 252 (2), Criminal Procedure Code, shows the ample powers of the Court in this respect. Section 204 (1-A) simply says that no summons or warrant shall be issued against the accused under section 204 (1) until a list of prosecution witnesses has been filed. It does hot say that that list should be communicated to the accused. Nor does it say that that list shall not be added to or varied from. Of course, it must be taken that the list filed under section 204. (1-A), Criminal Procedure Code,is not a mere nominal list, filed just for securing issue of summons or warrant against the accused, but is a bona fide list of witnesses so far known to the complainant and considered by him then as necessary for supporting the case he has set out in his complaint. It is, therefore, clear that the list filed under section 204(1-A) can be added 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 complainant under section 204 (1) of the Criminal Procedure Code, or in addition only to such of the witnesses in the primary list whom he decides to examine.

The second

Click Here to Read the rest of this document