(CRIMINAL REVISION)

SUDAN GOVERNMENT v. CHARLI MOUSALLI

AC-CR-REV-308-1966

 Principles

·  Criminal Procedure—Right of prosecution to call witnesses not produced before committing court—Code of Criminal Procedure, s. 185 is not debarred from adducing in Major Court witnesses other than those examined before committing court

·  Criminal Procedure—Power of court to call material witnesses at any stage—-Code of Criminal Procedure, s. 219-It is discretionary for the court to call any wit ness whose evidence is essential for prosecution or defence

(i) According to the Code of Criminal Procedure, s. 158, the prosecution is not debarred from adducing in Major Court witnesses other than those who have been examined before the committing cotirt.
(ii) The Code of Criminal Procedure, s. 219, gives discretionary power to the court to summon material witnesses at any stage of the trial or judicial proceedings, when their evidence is essential, either for the prosecution or defence.

Judgment

Advocate: Amin El Tahir El Shibli ……………………….for the accused

Salah Eddin Hassan I. (By authority of the Chief Justice). November 10, 1966: —During the trial and before the close of the prosecution case, the prosecutor asked the court to summon a certain witness or witnesses whose evidence has not been heard or taken during the Magis terial Inquiry. The learned advocate for the defendant objected on the ground that Code of Criminal Procedure, s. 158, forbids the hearing of the witness during the trial when evidence has not been heard in the Magisterial Inquiry. The trial judge overruled the objection on the following grounds:

1. The prosecutor has to produce all the evidence and witnesses in support of his case at -the Magisterial Inquiry stage and accordingly he has no right to call any additional witness during the trial.

2. The court in exercising its power under Code of Criminal Procedure, S. 219, decided to allow the witness to be heard because his evidence is essential to the just decision of the case.

The defence counsel submitted his application for revision to this court against the above decision. He tried to argue that the court in exercising its discretion under section 219 should not be moved by anybody and that if the court decides to exercise it with the result of strengthening the case for the prosecution that exercise would be void as being contrary to justice.

He further argued that the court in exercising this discretion should give great weight amongst other things to the provision of our Code of Criminal Procedure. So long as section 158 demands from the prosecution the production of all their witnesses at the Magisterial Inquiry—it is their duty to do so and if they failed the court should not supplement their failure by exercising its discretion under Code of Criminal Procedure, s. 219.

I regret, I am not inclined to agree with the learned advocate for the defence in his argument. I have, therefore, decided to uphold the decision of the President of the Court although I am not in support of his inter pretation of Code of Criminal Procedure, s. 158.

The relevant part of this section runs: The magistrate shall proceed to hear the complainant, if any, and to take all such evidence as may be produced in support of the prosecution.” The corresponding section in the Indian Code of Criminal Procedure is section 207A. The relevant part of it is nearly identical to the above quoted part of our section and it runs as follows: “The magistrate shall then proceed to take the evidence of such persons any, as may be produced by the prosecution.”

Comments on the Indian Code, s. 207, II Sohoni, The Code of Criminal Procedure, 1170 (15th ed., 1960), Malik & Sastry, Editors, says: “The magistrate is only bound to record the evidence of such witnesses to the actual commission of the offence alleged as may be produced by the prosecution. The committal order based only upon examination of some of such witnesses provided that they are the only witnesses tendered by the prosecution for that purpose does not suffer from any infirmity or illegality—The prosecution also is not debarred froni adducing in the sessions court witnesses other than those examined before the coin mitting court.” I am in full agreement with this comment and I believe that our section should be interpreted as such—the fact that a certain prosecution witness was not called at the Magisterial Inquiry should not be a bar to his being heard at the trial.

That disposes of the application but I am going to discuss the second point on which the learned president of the court relied in allowing the witnesses to be heard, i.e., the exercise of his discretion under Code of Criminal Procedure, S. 219. I am in full support of his view and I would like to expand his argument as such.

Code of Criminal Procedure, s. 219, is identical with the Indian Criminal Procedure Code, s. 540.

The section is composed of two parts. The first limb contains the word “MAY” and it therefore gives purely discretionary power to the court to do any of the following at any stage of the Inquiry, trial or other proceeding under the Code.

1. To examine any person present in court.

2. To summon anyone as a witness.

3. To recall and re-examine any person whose evidence has already been recorded.

The second part of the section contains the word SHALL” and is therefore mandatory and compels the court to take any of the above- mentioned steps if the new evidence appears to it essential to the just decision of the case.

The court examines this evidence neither to help the prosecution nor to help the accused. it is examined in the interest of justice: accordingly it cannot be argued that a party having exhausted all the opportunities allowed to it should not be permitted to introduce further evidence.

This residuary power should be exercised in pursuit of essential evidence only and not in satisfaction of second thoughts of a litigant.

Ill Sohoni, The Code of Criminal Procedure, 3144-16 (15th ed., 1960). Malik & Sastry, Editors, says:

“Section 540 is usually associated with court witnesses, but there is nothing in the section itself so to limit it and it can apply aIn to witnesses for the prosecution as well as to witnesses for the defence.”

On the next page 314—17 it says:

The summoning of a person as a witness whom the court considers necessary for giving a just finding cannot be said to be an Improper exercise of the powers under section 540 merely because the evidence supports the case of the prosecution and not that of the accused....”

The court is not precluded from exercis.ing its discretion under the section merely because somebody asks ft to do so. This is exactly what happened in this case. The court has been moved by one of the parties to exercise its discretion and it has exercised it. On passing the record I am satisfied that that discretion has been exercised judicially and that the witness in question is no doubt essential for the just decision o.f the case Proceedings are returned herewith for completion of trial and hearing the witnesses in question.