JUDGMENT 1. - This revision petition has been filed by the complainant and arises in the following circumstances:- On March 17, 1964 Subhas Dev Dangi filed a complaint before the District Magistrate Bhilwara against Balwant Singh and ten others for offences under sections 325 and 147, Indian Penal Code. The learned District Magistrate transferred the case to the Court of the Civil Judge and First Class Magistrate,Bhilwara. The complainant was examined by the learned Magistrate on April 9, 1964 when he also filed a list of his witnesses. Thereafter the learned Magistrate took cognizance of the case and directed the issue of summonses to the accused by his order dated September 25, 1964. Almost for a period of 5 years no effective proceedings took place in the case for some reason or the other and during this period the case was transferred to the court of Munsif-Magistrate, Chittorgarh. All the accused appeared in the Court of the learned Magistrate on January 19, 1967 and thereafter on May 17, 1969 the complainant filed a list of 18 witnesses whom he desired to examine in support of his case. As a matter if the fact the examination of the prosecution witnesses began on August 4, 1964. A supplementary list containing the names of 3 more witnesses was submitted by the complainant on October 4, 1971. 11 witness were examined on behalf of the prosecution upto Dec. 4,1971. Thereafter again for a period of almost one year no evidence was recorded. On November 13, 1972, the case was adjourned for Dec.16,1972 as no witness was present on behalf of the complaint. On the last mentioned date again no witness was present on behalf of the complainant nor any witness was summoned by him. He was then directed to summon his witnesses for January 13, 1973, on which date Moti Lal P.W.12 was examined. On this date the learned counsel for the complainant stated that he desired to examine only two more witnesses namely, Sohan Lal and Ratan Lal before the stage of framing of charge. On this date the complainant also submitted an application stating that he desired to examine one more witness, Chandra Shanker Kashyap, whose name was not included in any of the lists of witnesses so for submitted by him. On this date the complainant also submitted an application stating that he desired to examine one more witness, Chandra Shanker Kashyap, whose name was not included in any of the lists of witnesses so for submitted by him. According to the complainant Chandra Shanker was an important witness but his name escaped inclusion in the list of witnesses submitted by him earlier. It was stated by him that Chandra Shanker was present in the office of the Mining Engineering prior to the occurrence and the employees of the Mining Department went to his Jeep to the police station after having a conversation with the police officials on telephone. The aforesaid witness was present in court on January 13,1973 but the learned Magistrate rejected the application submitted by the complainant for this examination on the ground that Chandra Shanker was neither an eye witness of the occurrence nor his name was mentioned in any of the list of witnesses filed by the complainant since 1964 nor the facts mentioned in the application disclosed any relevancy with the averments made in the complaint. Thus, according to the learned Magistrate, he was not a material witness. It is against this order that the present revision petition has been filed by the complainant. 2. The learned counsel for the complainant has submitted that in the first place the learned Magistrate was bound to examine the aforesaid witness under the provisions of sub-section (1) of section 252, Cr. P.C., and secondly even under the provisions of section 252 (2), Cr.P.C., the learned Magistrate did not exercise his discretion judicially in refusing to examine the witness, as the said witness was present in court on January 13, 1973 and the prosecution evidence was still continuing and the case had been adjourned for the examination of the remaining two witnesses of the complainant for February 10, 1973. According to the learned counsel for the complainant the learned Magistrate had not ascertained from the complainant the names of persons likely to be acquainted with the facts of the case under section 252 (2), Cr. C.P., and until that stage was reached, the learned Magistrate had no discretion at all the matter and he could not shut out the evidence of Chandra Shanker. 3. C.P., and until that stage was reached, the learned Magistrate had no discretion at all the matter and he could not shut out the evidence of Chandra Shanker. 3. On the other hand the learned counsel for the accused contended that the provisions of sub-section (1) of section 252, Criminal Procedure Code were confirmed to the examination of witnesses who are present before the Magistrate on the first date when he proceeds to hear the complainant, after the appearance of the accused. He further urged that as the complainant had, filed a list of his witnesses on May 17, 1969 after the appearance of the accused and also filed a supplementary list thereafter, the provisions of the section 252 (2)Criminal Procedure Code were substantially complied with and there was no further requirement left for the learned magistrate to ascertain the names of witnesses from the complainant. He further submitted that in the facts & circumstances of the present case the learned Magistrate has properly exercised his discretion under section 252 (2), Criminal Procedure Code and this Court should not interfere with the discretion exercised by the learned Magistrate in its revisional jurisdiction. 4. Section 252, Criminal Procedure Code which is relevant for the decision of the present case runs as under:- "252 (1). In any case institution 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 support of the prosecution: Provided that the Magistrate shall not be bound to hear any person as complainant in any case in which the complaint has been made by a Court. (2). The Magistrate shall ascertain, from the complainant or otherwise; the names of any persons likely to be able to give evidence for the prosecution, and shall summon to give evidence before himself such of the as he thinks necessary." 5. Learned counsel for both the parties are agreed that the provisions of sub-section (1) of section 252, Criminal Procedure Code are mandatory in nature and the learned Magistrate is bound to examine all the witnesses produced by the complainant under that provision when the accused appears or is brought before him. Learned counsel for both the parties are agreed that the provisions of sub-section (1) of section 252, Criminal Procedure Code are mandatory in nature and the learned Magistrate is bound to examine all the witnesses produced by the complainant under that provision when the accused appears or is brought before him. There is also no dispute that the learned Magistrate has a discretion in respect of the examination of the persons whose names are disclosed by the complainant when the Magistrate proceeds to ascertain the names of such persons from him under sub section (2) of section 252, Criminal Procedure Code. However the dispute is as to whether the provisions of sub-section (1) section 252, Criminal Procedure Code are confined only to such witnesses who where present in court in the first instance when the Magistrate proceeds to record the statement of the complainant, after the accused appears or is brought before him or the complainant can produce other witnesses, at his sweet will and pleasure, at any time until the recording of the evidence of his witnesses, is concluded & the accused is charged or discharged. Another point of dispute between the learned counsel for the parties is as to whether it is obligatory upon the Magistrate to ascertain the names of persons likely to be acquainted under sub-section (2) of section 252, Criminal Procedure Code and that should be done after the completion of the examination of all the witnesses whom the complainant wishes to produce in support of his case under section 252 (1), Criminal Procedure Code or it can be done at an earlier stage namely when the complainant is examined after the appearance of the accused or soon thereafter. While the learned counsel for the complainant asserts that the complainant can examine as of right all the witnesses whom so ever he chooses to produce until the conclusion of the evidence and until the Magistrate ascertains from him the names of any such persons who may be able to give evidence for the prosecution, the learned counsel for the accused contests this submission. 6. 6. Learned counsel for the accused relies on the following observations of Munir J. in Heman Ram alias Hem Raj v. Emperor, AIR 1945 Labore 201 :- The provision requiring the Magistrate to proceed in this manner is mandatory, and it seems to be clear that before the stage of section 254 is reached i.e., before the accused is discharged or charge, the Magistrate must, in the manner laid down by Section 252(2), ascertain the names of all the persons who may be able to give evidence for the prosecution. In case where the offence is taken cognizance of on a police report, the police in submitting their report under section 173 of the Code are required by the form which is prescribed in this Province for the report to give a list of all the witnesses for the prosecution. The mere existence of this list, however, does not relieve the Magistrate of duty to ascertain the names of the witnesses under section 252(2) and he is bound to question the complainant or the officer in charge of the prosecution about the matter. Where before the charge is framed all the witnesses mentioned in the list have been examined and the complainant or the officer in charge of the prosecution makes a statement that he closes his case and has no further witnesses so examine the Magistrate may treat such statement as tantamount to a statement that there are no other persons acquainted with the facts of the case who may be able to give evidence for the prosecution, and he need to specifically question the complainant or the officer incharge of the prosecution on the matter." 7. On the basis of the aforesaid observation, learned counsel for the complainant urges that the complainant did not relieve the Magistrate of his duty under sub section (2) of section 252, Criminal Procedure Code to ascertain from the complainant the names of persons who are likely to be conversant with the facts of the case who may be able to give evidence for the prosecution & til then, he could produce any witness he liked. But in my humble opinion, the list of witnesses which Munir J. obviously had in view was the list of witnesses submitted under section 173 (1) (a), Criminal Procedure Code along with the police report or the list submitted with the complaint which has now been made obligatory under section 204 (1-A), Criminal Procedure Code (this provision was introduced in 1955); both of which are required to be filed before the process is issued to the accused. After the accused appears or is brought before a Magistrate, in a warrant case instituted on a complaint, under section 252, Criminal Procedure Code, there is no provision for the filing of a list of his witnesses by the complainant. Sub-section (1) of section 252, Criminal Procedure Code, enjoins upon the Magistrate to hear the complainant and take all such evidence as may be produced in support of the prosecution. This provision makes it obligatory upon the Magistrate to examine all the witnesses who are present in court along with the complainant when he proceeds to the trial after the accused appears or is brought before him. If instead of producing all his witnesses on the first date when the Magistrate proceeds to hear the complainant after the accused has appeared, the complainant files a list of his witnesses, it may be considered as sufficient compliance with the provisions of sub-section (1) of section 252 Criminal Procedure Code. There is no doubt that it is the duty of the Magistrate under sub-section (2) of section 252, Criminal Procedure Code to ascertain from the complainant the names of persons who are likely to be acquainted with the facts of the case and are able to give evidence for the prosecution, but it is not necessary for him to examine all such persons before the stage of framing of charge under section 254, Criminal Procedure Code, is reached. The Magistrate has a discretion in the matter, which he is expected to exercise judicially, under sub-section (2) of section 252, Criminal Procedure Code and he may examine only those witnesses amongst the persons so named as he may think necessary before framing charge under section 254, Criminal Procedure Code. There would be a further opportunity for the complainant to examine "any remaining witnesses" for the prosecution under section 256, Criminal Procedure Code, after the charge has been framed. There would be a further opportunity for the complainant to examine "any remaining witnesses" for the prosecution under section 256, Criminal Procedure Code, after the charge has been framed. In my view, Grille J. in Rahat Ali Amjadali and others v. Mohammed Murad, AIR 1938 Nag 103 has rightly held that the first part of section 252, Criminal Procedure Code refers only to such evidence as is offered on the date when the accused appears or is brought before the court and is confined to the initial production of the accused and does not refer to every subsequent appearance of the accused thereafter. The object of that provision appears to be that the evidence of such witnesses who are ready and appear in court should be taken directly no sooner the accused appears in court. Undoubtedly, even if it is necessary to adjourn the case, such witnesses should still come under the category of "such evidence as may be produced in support of the prosecution", under section 252 (1), Criminal Procedure Code because they were produced on the day when the accused appeared or was brought before the Court initially. However, when the aforesaid stage contemplated by the by the first Part of section 252, Criminal Procedure Code is over, the hearing of any unsummoned witnesses after that date is a matter within the discretion of the Magistrate. The fact that the Magistrate summoned all the witnesses mentioned by the complainant in the list subsequently filed by him, in its entirety without making any selection or making any inquiry from the complainant, does not alter the situation that the existence of such a list filed by the complainant is a compliance with the provisions of sub-section (2) of section 252, Criminal Procedure Code. 8. Grille J. in Rahat Ali's case (2) observed as follows:- The learned Sessions Judge has held that, as the Magistrate had not actually ascertained from the complainant the names of the persons likely to be acquainted with the facts of the case, the stage contemplated in the first part of the section was still in existence and that until the question had actually been asked, the complainant was at liberty to produce such unsummoned witnesses as he chose. This proposition would mean endless delay and harassment to accused persons, and if the judgement of Wallace J, in 49 Mad 978 to is be interpreted as allowing such procedure, I find myself with all respect unable to agree with it. What the second part of Section 252 authorises is what is done in every complaint case under another name; the filing of a list of witnesses whom the complainant desires shall be summoned." I entirely agree. 9. It may be mentioned here that the question before the Full Bench of Lahore High Court in Heman Ram's case (1) was as to whether under section 256, Criminal Procedure Code, the complainant was entitled to examine only those witnesses who have been named by him, as required by sub-section (2) of section 252, Criminal Procedure Code, before the charge was framed. The Lahore High Court in that case took the view that under section 252 (2), Criminal Procedure Code, the complainant was required to give the list of prosecution witnesses and if the Magistrate proceeds to frame a charge under section 254, Criminal Procedure Code, against the accused and certain witnesses remain from the aforesaid list, who have not been examined before the framing of the charge, then the words " any remaining witnesses', occurring in section 256 (1), Criminal Procedure Code, should be taken to refer to only those witnesses who remain so unexamined out of the list already submitted by the complainant under section 252 (2), Criminal Procedure Code. However, this view was not accepted by a Division Bench, of this Court in Rewa Chand v. the State, AIR 1955 Raj 113 where it was held that the words, "any remaining witnesses" in section 256 (1), Criminal Procedure Code, do not necessarily refer only to those witnesses, who, as required by sub-section (2) of section 252, Criminal Procedure Code have been named by the complainant, but were not summoned by the Magistrate before the charge has been framed and the accused has pleaded not guilty. This court has taken the view that the aforesaid words are wide enough so as to include any witness, who, according to the prosecution, is able to support its case, though he might not have been named earlier and was not summoned, provided that no surprise is sprung upon the defence and sufficient opportunity is given to the accused to prepare for this cross-examination. 10. The same view regarding the interpretation of the words "any remaining witnesses" occurring in section 256, Criminal Procedure Code was taken by Ray, Chief Justice of the Orissa High court in Handibandhu Misra v. King, AIR 1950 Ori. 245 , as was taken by this Court in Rewa Chand's case (3) and he also dissented from the view taken by the Lahore High Court in Heman Ram's case (1). 11. Learned counsel for the applicant also relied upon a decision of Madhya Pradesh High Court in Ishwardas v. Madho Singh Tomar, AIR 1958 MP 27 , but the view expresses therein is similar to that expressed in Rahat Ali's case (2) and does not support his contention. In that case Nevaskar J. made the following observation:- "Although the complainant had given the names of the witnesses whom he wanted to examine in the complaint it was open for him to bring to the notice of the Court the names of any further witnesses who were acquainted with the facts for the case. When this was done by the complainant it was incumbent upon the Magistrate under Section 252 (2), Criminal Procedure Code, to examine the list newly filed and call for necessary information on this matter from the complainant." 12. Learned counsel for the applicant also referred to Asadullah Patwari v. State, AIR 1960 J & K 44 , which has relied upon the decision of Madhya Pradesh High Court in Ishwardas's case ( AIR 1958 MP 27 ). 13. There is thus no doubt that although the Magistrate is bound to examine all the witnesses produced by the complainant in the first instance when the accused appears or is brought before him & he has no discretion in respect of the examination of such witnesses under sub-section (1) of section 252, Criminal Procedure Code, but after that stage is over, under the provisions of sub-section (2) of section 252, Criminal Procedure Code, the Magistrate has a discretion and he is required to summon only such of witnesses, as he may think necessary. There is ofcourse no bar under the provisions of the Criminal Procedure Code to preclude the prosecution from producing witnesses other than or in addition to those mentioned in the list already furnished by the complainant under section 204(1-A), Criminal Procedure Code, and the provisions of section 252 (1), Criminal Procedure Code do not impose any limitation on the complainant in respect of his right to produce such evidence that he may desire to produce & he has full power to examine all his evidence on the date the Magistrate proceeds with the hearing of the case after the accused appears or is brought before him, yet there is no such unfettered right in the complainant to produce new witnesses at subsequent hearing and to insist that the Magistrate is bound to examine them. The right of the complainant to examine any witness whom so ever he chooses is limited, after the accused appears or is brought before the Magistrate for the first time under Section 252 (1), Criminal Procedure Code, to such witnesses who are present on that date. Thereafter there is a duty cast upon the Magistrate to ascertain from the complainant the names of such persons who are likely to be acquainted with the facts of the case and are available to give evidence or the prosecution. But if the complainant himself after the accused has appeared, submits a list of persons who are likely to be acquainted with facts of the case and who may be able to give evidence for the prosecution, then the ascertainment of names of such persons by the Magistrate there from the complainant would be a needless formality. In my humble opinion, should be no insistence upon the ascertainment of names of witnesses from the complainant by the Magistrate under section 252 (2), Criminal Procedure Code, as a ritual because what matters is not the form, but the substance. In the case of Heman Ram (1) Munir J. also observed that if the complainant makes a statement that he closes case then the Magistrate should treat such a statement as amounting to compliance of the ascertainment of the names of his witnesses by the Magistrate under section 252 (2), Criminal Procedure Code, and in that case the Magistrate need not specifically question the complainant on that matter. Thus, it is clear that if by the conduct of the complainant it appears that he has brought to the notice of the Magistrate the names of all the persons who are likely to be acquainted with the facts of the case and are available for giving evidence for the prosecution, then so far as the ascertainment by the Magistrate under section 252 (2) Criminal Procedure Code, is concerned, would be sufficiently complied with. Further I do not find anything in the language of sub-section (2) of section 252, Criminal Procedure Code, to infer that the Magistrate should ascertain from the complainant the names of witnesses for the prosecution only after the examination of all witnesses of the complainant produced under section 252 (1) is concluded. 14. In the present case, the complaint was lodged in the year 1964 & the proceedings in the case have dragged on for almost ten years. All the accused appeared before the learned Magistrate on 19.1.1967 and thereafter the complainant produced a list of 18 witnesses on May 17, 1969. The actual examination of the prosecution evidence began under section 252, Criminal Procedure Code, on August 4, 1969, when the statement of the complainant Subhas Dev was partly recorded. On that date only two witnesses of the complainant, Sohan Lal & Bhagwati Lal were present, yet all the 18 witnesses whose names were included in the list furnished by the complainant prior to the aforesaid date namely, on May, 17, 1969 may be considered to come within the purview of sub section (1) of section 252 Criminal Procedure Code. Thereafter, the complainant submitted a further list of 3 witnesses as late as on October 4, 1971. The furnishing of the aforesaid supplementary list should be considered as substantial compliance with the provisions of section 252 (2), Criminal Procedure Code, as the complainant should be considered to have included in that list the names of all such persons, who, according to him, were acquainted with the facts of the case and were available for giving evidence on his behalf and at that stage questioning of the complainant by the Magistrate for the purpose of ascertaining the names of any such persons who could give evidence on behalf of the prosecution would have a mere empty formality. Moreover, on 13.1.1973 the complainant, obviously on being asked by the learned Magistrate stated that he desired to examine only two more witnesses namely, Sohan Lal & Ratan Lal before the stage of framing of the charge and it is apparent that, at any rate, at that time the ascertainment by the Magistrate of the names of witnesses who could gave evidence for the prosecution within the meaning of section 252 (2), Criminal Procedure Code, was complied with. It was on this date that the complainant submitted the application by which he desired to examine Chandra Shanker and it was then necessary for the learned Magistrate to decide whether in his discretion the aforesaid witness should be examined under section 252 (2), before the stage of framing of charge under section 254, Criminal Procedure Code, was reached. It might be noted in this respect that the complainant failed to disclose as to when he came to know that Chandra Shanker was acquainted with the facts of the case. Moreover, no reason has been assigned by the complainant as to why the name of this witness was not included by him in the list of prosecution witnesses filed by him on May 17, 1969 and October 4, 1971. The said witnesses is not an eye witness of the occurrence. Further it has not been mentioned in the application dated 13.1.73 as to whether the said witness heard the talk on the telephone and there is no corelation between the averments made in the complaint and the contents of the application so as to establish the relevancy of the evidence of this witness. The learned Magistrate considered all the relevant facts and circumstances and came to the conclusion that looking to the facts mentioned in the complaint Chandra Shanker did not appear to be material witness. This witness was suddenly produced before the learned Magistrate on 13.1.1973 and the accused could not have been obviously prepared for his cross-examination as the name of the aforesaid witness neither found any mention in the complaint nor in the statement of the complainant and any of his eleven witnesses examined upto such time. The provisions of section 252, Criminal Procedure Code, should not be allowed to be misused so that a surprise may be sprung upon the accused at any time. The provisions of section 252, Criminal Procedure Code, should not be allowed to be misused so that a surprise may be sprung upon the accused at any time. If the interpretation sought to be placed by the learned counsel for the complainant is accepted, then after all the witnesses mentioned by the complainant in his list are examined he may file a further list containing the names of a few more witnesses and when such witnesses are examined he may repeat the process again. In my view this would amount to uncalled for harassment of the accused & abuse of the process of the court. The trial cannot be allowed to continue for indefinite period at the whim & caprice of the complainant. In order that any party may not take unfair advantage of the process of the Court and unduly prolong the trial, section 252 (2), Criminal Procedure Code, gives the requisite power to the Magistrate to consider as to whether it is necessary to examine the witnesses whose names are disclosed by the complainant at subsequent stage in the course of the trial. Of course, the complainant will have further opportunity to examine his remaining evidence under section 256, Cr.P.C., after the charge is framed & the witnesses already examined by the prosecution are cross-examined by the accused. 15. In my opinion, the learned Magistrate exercised his discretion rightly and the order passed by him does not call for any interference by this Court. 16. The revision petition is consequently dismissed. *******