Discretionary Power of Magistrate to summon witnesses

Related Provision:

Sec 244, Cr.P.C.- 

244. Evidence for prosecution.

In Sec. 244(1), the expression used is ‘the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution’..

Similarly, the sub-section (6) of Sec 246, Cr.P.C. reads “The evidence of any remaining witnesses for the prosecution shall next be taken, and after cross-examinationm and re-examination (if any), they shall also be discharged.

The expression used as, `the evidence of any remaining witnesses for the prosecution shall next be taken,’. Therefore, the Magistrate has discretion, before he closes the trial, to summon the witnesses if it advances the  cause of justice. The discretion which has been conferred on the Magistrate under Section 244(2) and Section 246(6), Cr.P.C. should be used in appropriate cases for reasons to be recorded. The discretion should not be used fancifully and for a mala fide purpose to harass the accused. It is quite possible that sometimes when the complainant fails to substantiate the allegation, he may resort to dilatory tactics and thereby harass the accused by giving supplementary list to prolong the continuance of the case. This should be checked but in case it is found that in fact the application for summoning the additional witnesses is made for bona fide purpose and to substantiate the allegations made in the complaint, then the Magistrate may exercise such power in appropriate case.¹ 

Madras High Court, in S.Vivekanantham v. R. Viswanathan & Ors.², observed as follows:

“Section 244 is wide enough to give power to a Court to accept a supplemental or additional list of witnesses given by a complainant and to issue summons to them and record their evidence. Nowhere the section lays down that the complainant will not be entitled to file a supplemental list of witnesses nor the Court empowered to entertain such a list and examine one or more of the witnesses cited therein. Though Section 204(2) of the new Code prescribes that no summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed, that cannot be taken to mean that a complainant is irretrievably chained to the first list of witnesses filed by him and he cannot seek the permission of the court to examine additional witnesses even where circumstances or interests of justice warrant such examination. To hold otherwise would actually lead to grave injustice and hardships to complainants.”

Allahabad High Court in Nawal Kishore Shukla & Ors. v State of U.P. & Anr.³ 

The court while upholding the validity of order given by the Magistrate held that “As regards the order permitting the complainant to examine a witness, not named in the list of witnesses, the learned Magistrate could have done so in the circumstances of the case. It was not necessary that all the witnesses named in the list of witnesses should have been examined before such a permission could have been granted. The witness was in attendance and the prosecution evidence was being recorded under Section 244, Cr.P.C. The order by the learned Magistrate permitting the complainant to examine the witness cannot be said to be illegal or unjust.” Meaning thereby, it is up to discretion of Magistrate whether he allows complainant/prosecution examine the witnesses. However, if he thinks that it is being asked just to delay the proceeding and it may cause prejudice to the accused, he may not give his permission.

Justice G R Rao, in Jamuna Rani vs S. Krishna Kumar And Ors⁴ has referred to various decisions of different High Courts i.e. Madras, Bombay and Allahabad High Courts and held that the Court has discretion and it is not confined to the witnesses mentioned in the list appended to the complaint but it refers to any other witness mentioned in a  subsequent application filed before the discharge order is passed by the Magistrate.

“Taking into account the views expressed by the Madras, Bombay and Allahabad High Court and on interpreting ` all such evidence’ in S. 244(I), I feel that it does not limit to the witnesses mentioned in the list appended to the complaint but it refers to any other witness mentioned in a subsequent application filed before the discharge order is passed by the Magistrate.”

The Supreme Court of India in Sayeeda Farhana Shamim vs State Of Bihar & Anr⁵, while taking into account all the above-mentioned cases, held that:

The power of the Magistrate should not be fettered either under Section 244 or under sub-section (6) of Section 246 of the Cr.P.C. and full latitude should be given to the Magistrate to exercise the discretion to entertain a supplementary list. But, of course, while accepting the supplementary list the Magistrate shall exercise its discretion judiciously for the advancement of the cause of justice and not to give a handle to the complainant to harass the accused.

1. Sayeeda Farhara Shamin v. State of Bihar, (2008) 8 SCC 218.
2. 1977 CrLJ 425
3. 1992 Crl. L.J. 1554.
4. 1993 (1) ALT Cri 194: 1993 CriLJ 32.
5. Sayeeda, supra, at 1.

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