SAYEEDA FARHANA SHAMIM versus STATE OF BIHAR & ANR.

Citation: [2008] 9 S.C.R. 64 · Decided: 16-05-2008 · Supreme Court of India · Bench: A.K. MATHUR · Disposal: Appeal(s) allowed
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Judgment (excerpt)

A 
B 
[2008] 9 S.C.R. 64 
SAYEEDA FARHANA SHAMIM 
V. 
STATE OF BIHAR & ANR. 
(Criminal Appeal No. 928 of 2008) 
MAY 16, 2008 
[A.K. MATHUR AND AFTAB ALAM, JJ.] 
Code of Criminal Procedure, 1973 - ss. 244 (2) and 246 
(6) - Supplementary list of witnesses - Furnishing of by com-
e plainant - Permissibility - Held: The Magistrate has discre-
tion to summon the witnesses, before closure· of trial, if it ad-
vances the cause of justice - However, the discretion to be 
used in appropriate cases for reasons to be recorded.· 
The question for consideration in the present appeal 
D is whether supplementary list of witnesses uls 244 Cr.P.C. 
, 
E 
can be furnished by the complainant, in respect of the 
_., 
witnesses whose names did not appear in the list as re-
quired u/s 204 (2) Cr.P.C. 
Allowing the appeal, the Court 
HELD: The Magistrate has discretion, before he 
closes the trial, to summon the witnesses if it advances 
the cause of justice. However, the discretion which has 
been conferred on the Magistrate under Section 244(2) 
F and Section 246(6), Cr.P.C. should be used in appropriate 
y 
cases for reasons to be recorded. The discretion should 
not be used fancifully and for a mala fide purpose to ha-
rass the accused, but in case it is found that in fact the 
application for summoning the additional witnesses is 
G made for bona fide purpose and to substantiate the alle-
gations made in the complaint, then the Magistrate may 
exercise such power in appropriate case. (Para 5] (69-G,H, 
70-A-C] 
H • 
Jamuna Rani v. S.Krishna Kumar and Ors. 1993 Cr.L.J . 
64 
SAYEEDA FARHANA SHAMIM v. STATE OF 
65 
BIHAR & ANR. [AK. MATHUR, J] 
32; Nawal Kishore Shukla and Ors. v. State of UP and Anr. 
A 
1992 Crl. L.J. 1554; S. Vvivekanantham v. R. Viswanathan 
and Ors. 1977 Crl .. L.J. 425; V Ratna Shenoy v. S. A.Prabhu 
and Ors. AIR 1967 Kerala 233; State of Bombay v. Janardhan 
and Ors. AIR 1960 _Bombay 513; Somasundaram v. Gopa/ 
and Anr. AIR 1958 Madras 341 - approved. 
B 
Hari Pada Banerjee v. Hem Kanta Sen AIR 1969 
Calcutta 429 - disapproved. 
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal 
No. 928 of 2008 
c 
From the Judgment and final Order dated 13.12.2006 of 
the High Court of Judicature at Patna in Crl. Misc. No. 23629/ 
2005 
Anil K. Jha and Alka Jha for the Appellant. 
D 
Gopal Singh, Kumud Shekhar, S.W.A. Qadri and Lakshmi 
Raman Singh for the Respondents. 
The Judgment of the Court was delivered by 
A.K. MATHUR, J. 1. Leave granted. 
E 
2. This appeal is directed against the order dated 
13.12.2006 passed by learned Single Judge of the Patna High 
Court whereby the learned single Judge of the High Court has 
y 
quashed the order passed by the learned Sub-divisional Judi-
F 
cial Magistrate, Bhagalpur (hereinafter to be referred to as the 
S.D.J.M.) in Complaint Case No.1115 of 1999 by which the 
learned S.D.J.M. allowed prayer of the complainant by order 
dated 25.5.2005 to examine five witnesses named in the supple-
mentary list filed by the complainant. A complaint was filed un-
der Sections 323, 406, 498A of the Indian Penal Code and un-
G 
der Sections 3 & 4 of the Prevention of Dowry Act. Therefore, 
the limited question arose whether the complainant can file a 
supplementary list of witnesses or not. 
3. In order to appreciate the controversy involved in the H 
66 
SUPREME COURT REPORTS 
[2008] 9 S.C.R. 
A matter brief facts may be enumerated. A complaint was filed 
under Sections 323, 406, 498A of the Indian Penal Code and 
under Sections 3 & 4 of the Prevention of Dowry Act. The 
S.D.J.M. registered the complaint. Syed Abdul Shamim, the 
father of the complainant was examined under Section 202 of 
B the Code of Criminal Procedure but he died on 9.1.2001. There-
fore, this witness could not be tried during the trial. Out of the 
remaining four witnesses, only two witnesses i.e. Syed Abdul 
Shalim and Mohd. Sheru were examined before charge and 
were also examined after the charge. The rest of the two wit-
C nesses namely, Syed Abdul Fahim and Syed Obaidulla were 
gained over and therefore, they did not come to the witness 
box. Then, an application was filed by the complainant to exam-
ine further witnesses before the charge on 3.1.2003. The ac-
cused persons filed a rejoinder on 5.1.2003. However, the 
0 S.D.J.M., Bhagalpur rejected the petition filed on behalf of the 
complainant to examine further witnesses before charge by its 
order dated 1.5.2003. The S.D.J.M. framed the charge on 
30.8.2004. Then again
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