Judgment:
ORDER
R. Rajendra Babu, J.
1. This petition under Section 482, Cr.P.C. is at the instance of the complainant in C.C. No. 450/1994 before the Judicial First Class Magistrate's Court, Parappanangadi, challenging the order in CMP No. 5577/1997 rejecting the prayer for examining the witnesses from the fresh witness schedule. The petitioner filed the complaint against respondents 1 to 7 alleging the commission of offences under Sections 143, 447, 448, 427 and 506(1) read with Section 149, IPC. Along with the complaint. he filed a witness schedule. The complainant and two witnesses namely his wife and sister were examined. It was alleged that the four other witnesses scheduled in the witness list were won over by the accused and as they were not inclined to support the case of the complainant, he filed a subsequent witness list along with CMP No. 5577 of 1997. The Court below dismissed the above petition holding that it shall cause prejudice to the interest of the accused as well as the interest of justice. It was further observed that if such petitions are allowed, the complainant can examine any number of witnesses to fill up the lacuna in the prosecution case. Accordingly, the application was rejected.
2. Heard the learned counsel for the petitioner and the respondents. The learned counsel for the petitioner argued that the independent witnesses cited by the petitioner were won over by the accused and hence it has become necessary on the part of complainant to file a subsequent witness list to examine further witnesses to establish his case. It was further argued that there was no legal bar in filing a fresh witness schedule and examining of additional witnesses. This Court in V. Ratna Shenoy v. S.A. Prabhu, 1966 Ker LT 994 : (1967 Cri LJ 1517 (1)) considered the question whether witnesses other than those mentioned in list of witnesses filed under Section 204(1A) of the Old Act can be examined and held (Para 1):
The words 'remaining witnesses' in Section 256(1) do not refer only to those witnesses who were in the first list. They refer to witnesses who had not been examined or those whose names have not been disclosed in the list before charge was framed. Section 204(1A) only says that no action can be taken on a complaint unless the list of witnesses is filed. But that would not disentitle the complainant from giving an additional list and the Court in issuing summons and examining them. It cannot be said that the words 'remaining witnesses' involve only those that are left out from the first list.
The learned counsel for the petitioner placed reliance on a decision of the Jammu and Kashmir High Court also in Bashir Ahmad Zargar v. State, 1977 Cri LJ 919 to substantiate his case that additional witnesses can be examined. In the above decision it was held that the term 'remaining witnesses' in Section 256, Cr.P.C. is not limited to those witnesses referred to under Section 252 and it is wide enough to include any witnesses, who according to the prosecution, are able to support its case though they were not being summoned. There it was further held that the prosecution was at liberty to examine its witnesses even after framing of the charge and the non-examination of the witnesses in the list under Section 252 does not operate as a bar.
3. I respectfully agree with the above view taken by this Court as well as the Jammu and Kashmir High Court on the expression 'remaining witnesses' in Section 256, Cr.P.C. There is no legal bar in filing an additional witness schedule and examining witnesses who were not cited in the schedule filed along with the complaint under Section 204(2) Cr.P.C. The learned counsel for the respondents argued that there was inordinate delay in filing the list of witnesses and that was done only to fill up the lacuna in the prosecution case and if it was accepted, it would cause prejudice to the accused. The complaint was filed in 1994. The list of additional witnesses was filed in 1997 after the lapse of 3 years. The petition was disposed of only on 12-2-1998. The evidence let in by PWs. 1 to 3 did not disclose that the witnesses in the new list had witnessed the incident. In the above circumstances, the Court below was fully justified in rejecting the application, though there was no legal bar in allowing the examination of witnesses, whose names were not in the earlier witness list. Such witnesses can be allowed to be examined only if the complainant seeks to examine them within a reasonable time, or when the evidence collected would reveal that those witnesses had seen or occasion to see the incident. If the evidence already collected or the complaint disclose their presence at the time of the incident, they can be allowed to be examined as it will not cause any prejudice to the accused. But the examination of new witnesses after the lapse of a long period after the incident, whose presence was not borne out by evidence would cause prejudice to the accused and would only be an attempt to fill up the lacuna in the prosecution case, and such attempts cannot be allowed. Hence I find no reasons to interfere with the order of Court below and this petition has only to be dismissed.
4. In the result, this petition is dismissed.