The Magistrate has the power to allow the complainant to examine additional witnesses whose names were not included in the original list.

Gurdev Singh, J.

1. This is a petition for revision against the order of Shri V. K. Kapur, Sub-divisional Magistrate, New Delhi, dated the 12th May, 1964, whereby he permitted the responcent (comliinant) to examine three witnesses who were not named in the list of prosecution witnesses filed with the complaint.

2. On 19th October, 1982, Ram Lubhaya P. W. was examined, who according to the petitioners learned counsel did not support the prosecution. Thereafter the case was transferred to the Court of Shri M.L. Kakkar, Sub Divisional Magistrate, New Delhi, and it was on 17th May, 1963, that the evidence of Laxman Das another prosecution witness, was taken. The petitioner made an application to summon a file for the purpose of cross-examination of this witness on 7th June, 1963, with the object of bringing out that the witness had been coerced into making a statement favourable to the prosecution as the Customs Authorities had raided his permises on 30th April 1963, prior to his coming into the witness-box. This application was rejected by the trial Court, and on the petitioners transfer application, the case was sent to the Court of ShKri . C. Vaish, Sub-Divisional Magistrate, New Delhi. On 8th Januay, 1964, when the case was taken up by Shri S. C. Vaish, Magistrate First Class, the complainant examined three witnesses, whose names appeared in the list furnished with the complaint, but those witnesses could i;ot be cross-examined as the counsel for the accused was absent. The complainant, however, closed his case, and the learned Magistrate adjourned further proceedings to 21st January, 1964, for consideration of the question of framing the charge.

3. In the meantime, the accused again moved the Court of Session for transfer. The learned Sessions Judge, Delhi, by his order, dated the 12th March, 1964, however, rejected his prayer for transfer but directed the Magistrate to recall the three witnesses whom the complainant had already examined, so that the accused should have an opportunity to cross-eximine them. Before those witnesses could be recalled, or the question of framing the charge considered by the Magistrate the complainant put in an application purporting to be under sec. 252 of the Criminal Procedure Code on 19th April, 1961, for permission to summon three additional witnesses namely, Shri G. D. Thapar, Inspector of Customs, Shri B. N. Soni and Shri Trilok Chand (who were never named in the list of witnesses filed with the complaint) on the plea that they had to prove the statement of the accused alleged to have been recorded by the Customs Officer, which was one of the documents filed with the complaint. This belated request for adding to the list of the complainants witnesses was sought to be justified on the plea that it was an unfortunate omoission from the list of witnesss filed with the complaint, and their evidence in the case had become necessary as the order of the learned Sessions Judge directing the recalling of threa witnesses who had already been eximined had "brought about a complete change of circumstances, and it nec®ssitated formal proof of his statement.

4. This application was granted by the learned Magistrate on 12th May, 1964, when he directed that the three witnesses who had already been examined be recalled for cross-examination for 3rd June, 1964, and the three additional witnesses to whom this application related would be summoned on the next hearing. Aggrieved by this order, the accused Dalip Singh moved the Court of Session under sections 435 of the Criminal Procedure Code, but the learned Sessions Judge refused to forward the case to this Court being of the opinion that the order of the Magistrate was not beyond his competence nor unjust. Thre upon Dalip Singh approached this Court for setting aside the o"der of the Magistrate, dated 12th May, 1964, whereby he had permitted tiie complainant to examine three witnesses whose names did not appear in the list filed with the complaint.

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