IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.1735 of 2009 RANJEET KUMAR Versus STATE OF BIHAR & ORS ----------- 3. 9.4.2010 Heard Shri S.Nath No.1, learned counsel for the petitioner in the present petition filed under Section 482 of the Cr. P.C. after the petitioner had failed in getting a favourable order from the court of revision. The petitioner wanted to adduce some more evidence by examining some more witnesses under Section 246(6) of the Cr. P.C. The language used in that provision use the term as follows:- “ The evidence of any remaining witnesses for the prosecution shall next be taken” Learned counsel appearing for the petitioner has placed emphasis on the term „any remaining witnesses‟ and has submitted that after examining five witnesses under Section 244 of the Cr. P.C. and some of them being cross-examined by the accused persons under Section 246 of the Cr. P.C., a petition was filed by the petitioner before the Magistrate, i.e.,Shri R.K.Verma, Judicial Magistrate, Ist Class, Muzaffarpur, pointing out that one of them had died and two had been gained over and, as such, the necessity of examine some more witnesses by virtue of Section 246(6) of the Cr. P.C. A decision of the Supreme Court in Sayeeda Farhana Shamim Vs. State of Bihar and anr. reported in A.I.R. 2008 S.C. 2373 was placed by the 2 counsel to submit that it has been held by the Apex Court that “remaining witnesses” should be liberally construed and be given widen interpretation. Any witnesses who may be out side of the complaint, their names may be allowed to be placed before the court under the list of additional witnesses so as to advance the cause of justice. The relevant observation of the Supreme Court appears given after considering the provisions of Sections 244 and 246 of the Cr. P.C. at page 2375 of the report where the Apex Court was observing in the following terms: “ Here we want to say a word of caution that the discretion which has been conferred on the Magistrate under Section 244(2) and Section 246(6) Cr. P.C. could be used in appropriate cases for reasons to be recorded. The discretion should not be fancifully and for 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 the 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.” The above observation of the Supreme Court may be viewed in the light of the observation made by the Magistrate who was disposing of the petition filed before him for allowing the complainant petitioner to file list of additional witnesses. That petition appears filed on 5.1.2001 before Shri Verma, the Magistrate who was seized with the trial of complaint case no. 1254 of 1998. It has been observed by the Magistrate that the order of summoning against the accused persons was passed on 3 17.9.1998 and the appearance of the accused persons was completed on 6.4.1999. Thereafter, the evidence under Section 244 Cr. P.C. was started to be recorded from 3.5.1999 and the evidence of five witnesses was completed by 4.1.2000. The charges were framed on 24.3.2000 and thirteen dates were given to the complainant-petitioner for producing the witnesses for cross- examination after which three witnesses were produced by him for cross- examination. The last chance for producing the witnesses after framing of charges was given to the complainant petitioner on 4.12.2000 and thereafter no witness was produced and on 5.1.2001 a petition was filed. The learned Magistrate has held in his order that the whole intent behind filing of the petition dated 5.1.2001 was simply to delay the proceedings and on the above reason he was not inclined to allow the petition dated 5.1.2001. As may appear from the above observation of the learned trial Magistrate which contains the reasons on rejecting the petition dated 5.1.2001, the learned Magistrate has applied his mind fully to the background of the case and also to the background in which the petition was filed. The Magistrate was the arbiter at that level. He conducts the proceeding from day-to- day basis in a case before him. He could be the best person to appreciate as to what had been the conduct of the parties to the proceedings. The opinion expressed by him by supporting the same with reasons could be said to be the opinion expressed on 4 objectivity. Higher courts must not interfere with such findings. The view of the Magistrate appears supported by the Supreme Court decision also that no such petition could be allowed if the court finds frivolity in it. The petition is dismissed as of no merit. Kanth ( Dharnidhar Jha, J.)