PETITIONER:
MOHAN LAL SHAMLAL SONI
Vs.
RESPONDENT:
UNION OF INDIA AND ANOTHER
DATE OF JUDGMENT22/02/1991
BENCH:
PANDIAN, S.R. (J)
BENCH:
PANDIAN, S.R. (J)
REDDY, K. JAYACHANDRA (J)
CITATION:
1991 AIR 1346 1991 SCR (1) 712
1991 SCC Supl. (1) 271 JT 1991 (3) 17
1991 SCALE (1)401
ACT:
Code of Criminal Procedure 1973-Section 311
(Corresponding to section 540 of the old code)-Summoning of
person as witness-Recall or re-examine of such person-
Juridiction of Court-To be dictated by exigency of situation
and fair play.
HEADNOTE:
Appellant's business and residential premises were
raided by the Customs Department as a result whereof gold
ingots with foreign marks, gold ornaments, silver bricks,
coins and a cash of Rs.79,000 was seized. The Assistant
Collector of Customs filed two separate complaints relating
to the said incident against the appellant before the
Judicial magistrate, one for violating the provisions of
Customs Act, 1962 and the other under the Gold Control Act,
1968. In the trial, after the close of evidence by both
sides, prosecution as also defence, arguments were advanced
on behalf of the accused appellant. The prosecution at that
stage before commencing its arguments filed two applications
in both the cases, under Section 540 of the Old Code
(corresponding to section 311 of the new Code) requesting
the trial court to recall one witness viz., the Seizing
officer, and issue summons to two more witnesses for
examination either as prosecution witnesses or as court
witnesses. The trial magistrate rejected both the
application and the revision petitions preferred by the
respondents against that order failed before the Sessions
Judge. The Union of India thereupon preferred two revision
applications before the High Court. The State of Gujarat
also preferred separate revision applications before the
High Court. The High Court allowed the revision petitions
and directed examination of the three witnesses sought to be
summoned. Being aggrieved the appellant has filed these
appeals after obtaining special leave against the decision
of the High Court, in the revision applications filed by the
Union of India. No appeal has been filed against the order
passed by the High Court in the revision applications filed
before it, by the State of Gujarat. The main contention of
the appellant is that the High Court erred in allowing the
second revision application in view of the provisions of
section 397(3) of the new Code thus permitting the
prosecution to fill up the lacuna and plug the loopholes in
its case which is prejudicial to the appellant.
713
Dismissing the appeals, this Court,
HELD: Though Section 540 (Section 311 of the new Code)
is, in the widest possible terms and calls for no
limitation, either with regard to the stage at which the
powers of the court should be exercised, or with regard to
the manner in which they should be exercised, that power is
circumscribed by the principle that underlines section 540,
namely, evidence to be obtained should appear to the court
essential to a just decision of the case by getting at the
truth by all lawful means. The aid of the section should be
invoked only with the object of discovering relevant facts
or obtaining proper proof of such facts for a just decision
of the case and it must be used judicially and not
capricicously or arbitrarily. Due care should be taken by
the court while exercising power under this section and it
must not be used for filling up the lacuna left by the
prosecution or by the defence or to the disadvantage of the
accused or to cause serious prejudice to the defence of the
accused or to give an unfair advantage to the rival side and
further the additional evidence should not be received as a
disguise for a retrial or to change the nature of the case
against either of the parties. [721B-E]
Whenever any additional evidence is examined or fresh
evidence is admitted against the accused, it is absolutely
necessary in the interests of justice that the accused
should be afforded a fair and reasonable opportunity to
rebut that evidence brought on record against him. [725E]
The Criminal court has ample power to summon any person
as a witness or recall and re-examine any such person even
if the evidence on both sides is closed and the jurisdiction
of the court and must obviously be dictated by exigency of
the situation, and fair-play and good sense appear to be the
only safe guides and that only the requirements of justice
command the examination of any person which would depend on
the facts and circumstances of each case. [724C-D]
The facts and circumstances of the case require the
examination of these three witnesses for a just decision of
the case as held by the High Court. [726G]
Jamatraj Kewalji Govni v. State of Maharashtra, [1967]
3 SCR 415; Rameshwar Dayal v. State of U.P., [1978] 2 SCC
518; State of West Bengal v. Tulsidas Mundhra, [1963] 2
S.C.J. 204 at 207; Masalti v. State of U.P., AIR 1965
S.C.202; Rajeshwar Prasad Misra v. State of West Bengal and
Anr., [1966] 2 S.C.R. 178; R.B. Mithani v.
714
Maharashtra, AIR 1971 S.C. 1630; Channu Lal v. R., AIR 1949
All 692; Rengaswami Naicker v. Muruga Naicker, AIR 1954 Mad
169; Shugan Chand v. Emperor, AIR 1925 Lah 531 and The Queen
v. Assanoolah, 13 SWR (Crl.) 15, referred to.
Mir Mohd. Omar and Others v. State of West Bengal,
[1989] 4 SCC 436, distinguished.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 4
& 5 of 1979.
From the Judgment and Order dated 21.3.1978 of the
Gujarat High Court in Criminal Revision Application Nos. 98
and 97 of 1978.
S.K. Kulkarani and P.C. Kapur (NP) for the Appellant.
Arun Jetley, Additional Solicitor General, Ms. Indu
Malhotra, M.N. Shroff, P. Parmeshwaran, Ms. A. Subhashini,
Ms. Ayesha Karim and P.K. Mullick for the Respondents.
The Judgment of the Court was delivered by
S. RATNAVEL PANDIAN J. These criminal appeals by
special leave granted under Article 136 of the Constitution
of India are preferred by the appellant questioning the
correctness of the judgment of the Gujarat High Court in
Criminal Revision Application Nos. 98 and 97 of 1978 whereby
the High Court set aside the judgment and orders dated
2.1.1978 of the Sessions Judge, Kutch at Bhuj made in
Criminal Revision Application Nos. 46 and 45 of 1976
confirming the orders dated 19.6.76 passed by the Judicial
Magistrate, First Class, Kutch in Application Exh. Nos. 94
and 98 in Criminal Case Nos. 929 and 930 of 1973
respectively. The factual matrix that have relevance to the
questions, raised and canvassed at the hearing may be
briefly stated.
A raid conducted by the officers of the Customs
Department in the business-cum-residential premises of the
appellant on 17.9.1971 resulted in the seizure of some
gold Lagadis bearing foreign marks, primary gold, gold
ornaments and silver bricks, coins etc. to the value of
about Rs.8,48,422. During the said raid a sum of Rs.79,000
was also seized. In respect of this incident, the Assistant
Collector of Customs filed two separate complaints on
26.11.1973 against the appellant in the court of the
Judicial Magistrage, First Class, Anjar, being criminal
cases Nos. 929 and 930 of 1973 for offences punishable (1)
under the
715
provisions of the Customs Act 1962 and (2) under the Gold
Control Act 1968. After examination of the prosecution as
well as the defence witnesses and recording of the
statements of the appellants under Section 342 of the old
Code of Criminal Procedure (hereinafter referred to as the
Code’) arguments were advanced on behalf of the
appellant/accused. The prosecution at this stage before
commencing its arguments filed two applications both the
cases under Section 540 of the old Code (corresponding to
Section 311 of the new Code) requesting the Trial Court to
recall Mr. Mirchandani (the Seizing Officer) for further
examination and to issue summons to two more witnesses,
namely, Mr. K.K. Das, Assistant Collector of Customs and the
Deputy Chief Officer (Assayer) of Mint Master, Bombay for
examination either as prosecution witnesses or as court
witnesses as cotemplated under the said provision. The
learned Judicial Magistrate passed two orders rejecting the
applications which orders, on revision by the respondents
were confirmed by the session’s Judge on being aggrieved by
the said revisional orders, the Union of India (the first
respondent herein) preferred two Criminal Revision
Applications Nos. 97 and 98 of 1978. The second respondent,
namely, the State of Gujarat also preferred two other
Criminal Revision Application Nos. 124 and 125 of 1978. The
High Court by its Common Judgment, though heavily criticised
the conduct of the prosecution for its deplorable and
lethargic attitude in not carefully and promptly conducting
the proceedings allowed all the Criminal Revisions for the
reasons assigned therein holding thus:
“In view of what has been stated above, I accept
the four petitions filed in this court by the Union
of India, and the State of Gujarat, and direct the
Union of India to examine the aforesaid three
witnesses within a period of fortnight after the
receipt of the order of this court to the trial
court. After the Union of India examines the
aforesaid three witnesses as aforesaid, it will be
open to the accused to cross-examine all the
witnesses examined by the Union of India before the
learned Magistrate.
Feeling aggrieved by the judgment of the High Court,
these two appeals are preferred by the appellant. In this
context, it is pertinent to note that the appellant has not
directed any appeal against the judgment of the High Court
in allowing the two other Revision Application Nos. 124 and
126 of 1978 filed by the Gujarat Government which were also
allowed by the High Court.
716
The learned counsel appearing on behalf of the
appellant vigorously challenged the legality of the impugned
judgment inter-alia contending that the High Court has
gravely erred in allowing the second revision petitions
filed by the respondent by ignorning the weighty reasons
given by the Trial Magistrate and the Section Judge (before
whom the first revision was filed) and thereby in permitting
the respondent-the Union of India-to examine the three
witnesses as prayed by it, notwithstanding that the case was
pending before the Trial Court for considerable length of
time and the defence argument was concluded and that the
High Court, by the impugned order has permitted the
prosecution to bolster up its case by filling up the lacuna
and plugging the loopholes which if carried out would be
detrimental and prejudicial to the appellant.
The next legal submission made on behalf of the
appellant is that the entertainment of the second revision
by the High Court is in violation of sub-sections (2) and
(3) of Section 397 of the new Code since the order passed by
the Magistrate was an interlocutory order and that even
assuming that it was not so, the second revision by the same
affected party is not entertainable.
Before adverting to the arguments advanced on behalf of
the appellant, we would examine in general the scope and
intent of Section 540 of the old Code (corresponding to
Section 311 of the new Code).
Section 540 was found in Chapter XLVI of the old Code
of 1898 under the heading “Miscellaneous’. But the present
corresponding Sections 311 of the new Code is found among
other Sections in Chapter XXIV under the heading ‘General
Provisions as to Enquiries and Trials’. Section 311 is an
almost verbatim reproduction of Section 540 of the old Code
except for the insertion of the words ‘to be’ before the
word ‘essential’ occurring in the old Section. This section
is manifestly in two parts. Whereas the word ‘used’ in the
first part is ‘may’ the word used in the second part is
‘shall’. In consequence, the first part which is permissive
gives purely discretionary authority to the Criminal Code
and enables it ‘at any stage of enquiry’ trial or other
proceedings’ under the Code to act in one of the three ways,
namely,
(1) to summon any person as a witness or
(2) to examine any person in attendance, though not
summoned as a witness, or
(3) to recall and re-examine any person already
examined.
717
The second part which is mandatory imposes an
obligation on the Court-
(1) to summon and examine, or
(2) to recall and re-examine any such person if his
evidence appears to be essential to the just
decision of the case.
The very usage of the words such as ‘any court’, ‘at
any stage’, or ‘of any enquiry, trial or other proceedings’,
‘any person’ and ‘any such person’ clearly spells out that
this section is expressed in the widest possible terms and
do not limit the discretion of the Court in any way.
However, the very width requires a corresponding caution
that the discretionary power should be invoked as the
exigencies of justice require and exercised judically with
circumpection and consistently with the provisions of the
Code. The second part of the Section does not allow for any
discretion but it binds and compels the Court to take any of
the aforementioned two steps if the fresh evidence to be
obtained is essential to the just decision of the case.
It is a cardinal rule in the law of evidence that the
best available evidence should be brought before the Court
to prove a fact or the points in issue. But it is left
either for the prosecution or for the defence to establish
its respective case by adducing the best available evidence
and the Court is not empowered under the provisions of the
Code to compel either the prosecution or the defence to
examine any particular witness or witnesses on their sides.
Nonetheless if either of the parties with-holds any evidence
which could be produced and which, if produced, be
unfavorable to the party withholding such evidence, the
court can draw a presumption under illustration (g) to
Section 114 of the Evidence Act. In such a situation a
question that arises for consideration is whether the
presiding officer of a Court should simply sit as a mere
umpire at a contest between two parties and declare at the
end of combat who has won and who has lost or is there not
any legal duty of his own, independent of the parties, to
take an active role in the proceedings in finding the truth
and administering justice? It is a well accepted and
settled principle that a Court must discharge its statutory
functions-whether discretionary or obligatory-according to
law in dispensing justice because it is the duty of a Court
not only to do justice but also to ensure that justice is
being done. In order to enable the Court to find out the
truth and render a just decision, the salutary provisions of
Section 540 of the Code (Section 311 of the New Code) are
enacted whereunder any
718
Court by exercising its discretionary authority at any stage
of enquiry, trial or other proceeding can summon any person
as a witness or examine any person in attendance though not
summoned as a witness or recall or re-examine any person in
attendance though not summoned as a witness or recall and
re-examine any person already examined who are expected to
be able to throw light upon the matter in dispute; because
if judgments happen to be rendered on inchoate, inconclusive
and speculative presentation of facts, the ends of justice
would be defeated.
There are various other provisions in the new Code
corresponding to the provision of the old Code empowering
the court specified therein to recall any witness or
witnesses already examined or summon any witness, if it is
felt necessary in the interest of justice at various stages
mentioned in the concerned specific provisions.
A Judge under Section 236 (Section 310 old Code) or a
Magistrate under Section 248(3) (Section 251-A(13) and 255-A
old Code) is empowered to take evidence in respect of the
previous convictions of the accused person concerned if he
is charged with the previous conviction under sub-section
(7) of Section 211 and if he does not admit the previous
conviction. Under Section 367 (Section 375 old Code) if,
when sentence of death passed by the Court of Sessions is
submitted for confirmation to the High Court under Section
366(1) (Section 374 of the old Code), the High Court thinks
that a further enquiry should be made into or additional
evidence taken upon, any point bearing upon the guilt or
innocence of the convicted person, it may make such inquiry
or take such evidence itself or direct it to be made or
taken by the Court of Session.
Under Section 391 (Section 428 of old Code) the
Appellate Court while dealing with any appeal under Chapter
XXIX, if thinks additional evidence to be necessary, may
after recording its reasons either take such evidence itself
or direct it to be taken by a subordinate Court as the case
may be. Under Section 463(2) (Section 533 old Code) if any
Court of Appeal, Reference and Revision before which
confession or other statement of an accused recorded or
purporting to be recorded under Section 164 or Section 281
(Section 364 of the old Code) is tendered, or has been
received in evidence, finds that any of the provisions of
either such sections have not been complied with by the
Magistrate recording the statement, the Court may
notwithstanding anything contained in Section 91 of the
Indian Evidence Act take evidence in regard to such non-
compliance and may, if satisfied that
719
such non-compliance has not injured the accused in his
defence on the merits and that he duly made the statement
recorded, admit such evidence.
Analogous to the above provisions of the Code of
Criminal Procedure there are various provisions in the civil
Procedure Code also enabling the civil Court to summon
witnesses and examine them in the interest of justice.
Under Order X Rule 2 of the Civil Procedure Code, the Court
at the first hearing of the suit or at any subsequent
hearing may examine any party appearing in person or present
in Court or any person able to answer any material questions
relating to the suit by whom such party or his pleader is
accompanied. Under Order X Rule 14 the Court may of its own
motion summon as a witness any person including the party to
the suit for examination and the said Rule is under the
caption “Court may of its own accord summon as witnesses
strangers to suit” and Order XVIII Rule 17 empowers the
Court to recall any witness who has been examined and may
subject to Law of Evidence for the time being in force put
such questions to him as it thinks fit. The powers of the
Court under this Rule 17 are discretionary and very wide.
Besides the above specific provisions under the Cr.
P.C. and C.P.C. empowering the criminal and civil courts as
the case may be, to summon and examine witnesses, a Judge in
order to discover or to obtain proof of relevant facts is
empowered under Section 165 of the Indian Evidence Act to
exercise all the privileges and powers subject to the
proviso to that section which power he has under the
Evidence Act. Section 540 of the old Code (Section 311 of
the new Code) and Section 165 of the Evidence Act may be
said to be complementary to each other and as observed by
this Court in Jamatraj Kewalji Govani v. State of
Maharashtra, [1967] 3 SCR 415 “these two sections between
them confer jurisdiction on the Judge to act in aid of
justice.”
The second part of Section 540 as pointed out albeit
imposes upon the Court an obligation of summoning or
recalling and re-examining any witness and the only
condition prescribed is that the evidence sought to be
obtained must be essential to the just decision of the case.
Though any party to the proceedings points out the
desirability some evidence being taken, then the Court has
to exercise its power under this provision-either
discetionary or mandatory-depending on the facts and
circumstances of each case, having in view that the most
paramount principle underlying this provision is to discover
or to obtain proper proof of relevant facts in order to meet
the
720
requirements of justice. In this connection we would like
to quote with approval the following views of Lumpkin, J. in
Epps v. S., 19 Ga, 118 (Am), which reads thus:
“…………it is not only the right but the duty
of the presiding judge to call the attention of the
witness to it, whether it makes for or against the
prosecution; his aim being neither to punish the
innocent nor screen the guilty, but to administer
the law correctly ……………………………
……………………………………………
Counsel seek only for their client’s success; but
the judge must watch that justice triumphs.”
The law is clearly expounded in the case of Jamatraj
Kewalji Govani (referred to above) wherein Hidayatullah, J
as he then was, while speaking for the Bench about the
unfettered discretionary power of the court as envisaged
under Section 540 of the Code has stated thus:
“It is difficult to limit the power under our Code
to cases which involve something arising ex-
improviso which no human ingenuity could foresee,
in the course of the defence. Our Code does not
make this a condition of the exercise of the power
and it is not right to embark on judicial
legislation. Cases that go far are of course not
quite right. Indeed they could be decided on fact
because it can always be seen whether the new
matter is strictly necessary for a just decision
and not intended to give an unfair advantage to one
of the rival sides …………………………..
……………………………………………
……………………………………………
It would appear that in our criminal jurisdiction,
statutory law confers a power in absolute terms to
be exercised at any stage of the trial to summon a
witness or examine one present in court or to
recall a witness already examined, and makes this
the duty and obligation of the Court provided the
just decision of the case demands it. In other
words, where the court exercises the power under
the second part, the inquiry cannot be whether the
accused has brought anything suddenly or
unexpectedly but whether the court is right in
thinking that the new evidence is needed by it for
a just decision of the case. If the court has
acted without the requirements of a just decision,
the
721
action is open to criticism but if the court’s
action is supportable as being in aid of a just
decision the action cannot be regarded as exceeding
the jurisdiction.”
The next important question is whether Section 540
gives the court carte-blanche drawing no underlying
principle in the exercise of the extra-ordinary power and
whether the said Section is unguided, uncontrolled and
uncanalised. Though Section 540 (Section 311 of the new
Code) is, in the widest possible terms and calls for no
limitation, either with regard to the stage at which the
powers of the court should be exercised, or with regard to
the manner in which they should be exercised, that power is
circumscribed by the principle that underlines Section 540,
namely, evidence to be obtained should appear to the court
essential to a just decision of the case by getting at the
truth by all lawful means. Therefore, it should be borne in
mind that the aid of the section should be invoked only with
the object of discovering relevant facts or obtaining proper
proof of such facts for a just decision of the case and it
must be used judicially and not capriciously or arbitrarily
because any improper or capricious exercise of the power may
lead to undesirable results. Further it is incumbent that
due care should be taken by the court while exercising the
power under this section and it should not be used for
filling up the lacuna left by the prosecution or by the
defence or to the disadvantage of the accused or the cause
serious prejudice to the defence of the accused or to give
an unfair advantage to the rival side and further the
additional evidence should not be received as a disguise for
a retrial or to change the nature of the case against either
of the parties.
Fazal Ali, J in Rameshwar Dayal v. State of U.P.,
[1978] 2 SCC 518 while expressing his views about the
careful exercise of its power by the court has stated:
“It is true that under Section 540 of the Criminal
Procedure Code the High Court has got very wide
powers to examine any witness it likes for the just
decision of the case, but this power has to be
exercised sparingly and only when the ends of
justice so demand. The higher the power the more
careful should be its exercise ………………..
The words, “Just decision of the case” would become
meaningless and without any significance if a
decision is to be arrived at without a sense of
justice and fair play.”
In State of West Bengal v. Tulsidas Mundhra, [1963] 2
S.C.J. 204 at 207, it has observed:
722
“It would be noticed that this section confers on
criminal Courts very wide powers. It is no doubt
for the Court to consider whether its power under
this section should be exercised or not. But if it
is satisfied that the evidence of any person not
examined or further evidence of any person already
examined is essential to the just decision of the
case, it is its duty to take such evidence. The
exercise of the power conferred by section 540 is
conditioned by the requirement that such exercise
would be essential to the just decision of the
case.”
At the risk of repetition it may be said that Section
540 allows the court to invoke its inherent power at any
stage, as long as the court retains seisin of the criminal
proceeding, without qualifying any limitation or
prohibition. Needless to say that an enquiry or trial in a
criminal proceeding comes to an end or reaches its finality
when the order or judgment is pronounced and until then the
court has power to use this section. The answer to the
question like the one that has arisen in the present case is
whether the court would be justified in exercising its power
under Section 540 is found in Kewalji’s case (albeit). In
that case the appellant was prosecuted on two counts under
Section 135(a) and (b) of the Customs Act. The appellant
did not lead any evidence on his behalf but filed a written
statement, claiming inter-alia that no offence had been
disclosed against him, since no witness had deposed that the
contraband had been seized from him under the Act in the
reasonable belief that they were smuggled goods. The day
after the statement was filed, the prosecution applied for
examination of the customs officer who was incharge of the
search as a court witness in the interest of justice. The
Magistrate ordered the examination of the officer under
Section 540 of the Code rejecting the objections raised by
the appellant. Though an opportunity was given to the
appellant to lead defence evidence, the appellant stated
that he had nothing further to add and no evidence to lead.
The Trial Court convicted the appellant who being aggrieved
by the judgment of the Trial Court preferred an appeal to
the High Court which dismissed the appeal. Before this
Court it was contended that the evidence of the officer was
improperly received. That contention has been repelled by
this court observing “This power is exercisable at any time
and the Code of Criminal Procedure clearly so states” and
thereafter concluded “it cannot be said that the Court had
exceeded its jurisdiction in acting the second part of
Section 540 of the Code of Criminal Procedure.”
Gajendragadkar, J. speaking for the Bench in Tulsidas
Mundhra
723
(cited supra) has pointed out as follows:
“Section 540 in terms applies at any stage of any
enquiry, trial or other proceeding under this Code.
This section is wide enough to include a proceeding
under section 207-A and so, it would be
unreasonable to contend that the scheme of section
207-A makes section 540 inapplicable to the
proceeding governed by section 207-A. The power of
the Court under section 540 can be exercised as
much in regard to cases governed by section 207-A
as in regard to other proceedings governed by the
other relevant provisions of the Code.”
(It may be noted that section 207-A of the old Code in
Chapter XVIII under the caption “Enquiry into cases triable
by the court of Session or the High Court” dealt with the
procedures to be adopted in proceedings instituted on police
report and this provision is omitted in the new Code.)
This Court in Kewalji’s case (albeit) held that Chapter
XXI of Cr. P.C. (old) under the heading “Of the Trail of
Warrant-cases by Magistrates” does not restrict the powers
of criminal court under Section 540.
In Masalti v. State of U.P., AIR 1965 S.C. 202 wherein
the defence did not opt to examine some witnesses who have
been left out by the prosecution on the bona fide belief
that those witnesses had been won over and the court also
after due deliberation refused to exercise its power under
Section 540; this Court while examining a submission that
the Trial Court should have exercised its power under
Section 540 and examined those witnesses expressed its
opinion that “that is one aspect of the matter which we have
to take into account”-that is in considering whether the
accused were prejudiced or not.
It has been held by this Court in Rajeswar Prasad Mora
v. State of West Bengal & Anr.,[1966] 1 SCR 178 while
dealing with the ample power and jurisdiction of the court
in taking additional evidence as follows:
“Additional evidence may be necessary for a variety
of reasons which it is hardly necessary (even if it
was possible) to list here. We do not propose to
do what the Legislature
724
has refrained from doing, namely, to control
discretion of the appellate Court to certain stated
circumstances. It may, however, be said that
additional evidence must be necessary not because
it would be impossible to pronounce judgment but
because there would be failure of justice without
it. The power must be exercised sparingly and only
in suitable cases. Once such action is justified,
there is no restriction on the kind of evidence
which may be received. It may be formal or
substantial.”
The above view has been reiterated in R.B. Mithani v.
Maharashtra, AIR 1971 S.C. 1630.
The principle of law that emerges from the views
expressed by this court in the above decisions is that the
Criminal Court has ample power to summon any person as a
witness or recall and re-examine any such person even if the
evidence on both sides is closed and the jurisdiction of the
court must obviously be dictated by exigency of the
situation, and fair-play and good sense appear to be the
only safe guides and that only the requirements of justice
command and examination of any person which would depend on
the facts and circumstances of each case.
What falls for determination now is whether the person
indicated should be given an opportunity to rebut the
evidence of the witness or witnesses summoned and examined
under Section 540. This question came for determination in
Rameshwar Dayal’s case and this court answered that question
thus:
“It was argued by counsel for the State that there
is no provision in the Criminal Procedure Code
which requires the court to allow the appellant an
opportunity to rebut the evidence of witnesses
recommended under Section 540 Cr. P.C. This
argument, in our opinion, is based on a serious
misconception of the correct approach to the
cardinal principles of criminal justice. Section
540 itself incorporates a rule of natural justice.
The accused is presumed to be innocent until he is
proved guilty. It is, therefore, manifest that
where any fresh evidence is admitted against the
accused the presumption of innocence is weakened
and the accused in all fairness should be given an
opportunity to rebut that evidence. The right to
adduce evidence in rebuttal is one of the
inevitable steps in the defence of a case by
725
the accused and a refusal of the same amounts not
only to an infraction of the provisions of the
Criminal Procedure Code but also of the principles
of natural justice and offends the famous maxim
audi alteram partem ………………………….
……………………………………………
A careful perusal of this provision manifestly
reveals that the statute has armed the Court with
all the powers to do full justice between the
parties as full justice cannot be done until both
the parties are properly heard the condition of
giving an opportunity to the accused to rebut any
fresh evidence sought to be adduced against him
either at the trial or the appellate stage appears
to us to be implicit under Section 540 of the Cr.
P.C.”
See also Kewalji’s case (cited above). This was the
view taken by various High Court such as in Channu Lal v.
R., AIR 1949 All. 692; Rengaswami Naicker v. Muruga Naicker,
AIR 1954 Mad. 169; Shugan Chand v. Emperor, AIR 1925 Lah 531
and The Queen v. Assanoolah, 13 SWR (Crl.) 15.
The views expressed in the above judgments of the
various High Courts have been approved by this Court in
Rameshwar Dayal’s case. We are in full agreement with the
above view of Fazal Ali, J and hold that whenever any
additional evidence is examined or fresh evidence is
admitted against the accused, it is absolutely necessary in
the interest of justice that the accused should be afforded
a fair and reasonable opportunity to rebut that evidence
brought on record against him.
With this legal background let us now turn to the
challenge posed by the appellant in these appeals. The Trial
Court and the First Revision Court rejected the request of
the prosecution on three grounds, namely, first that the
prosecution has attempted to fabricate evidence at a belated
stage to fill up the lacuna in the prosecution case and
secondly that the request of the prosecution for taking
additional evidence was after the closure of the defence and
thirdly a substantial prejudice would be caused to the
appellant if the prosecution is allowed to adduce fresh
evidence. As pointed out by the High Court in its impugned
order, gold, silver ornaments of the value of Rs.8,48,482
and currency notes of Rs.79,000 have been seized from the
premises, searched on the strength of the search warrant
issued by Shri K.K. Das. What the appellant now contends is
that the order of the High Court permitting the prosecution
to recall one of the witnesses already examined and to
summon two other new witnesses to prove
726
the foreign makings on the legadis is in violation of the
principle underlying Section 540. We waded through the
entire records inclusive of the copies of depositions,
search warrant and the application filed by the prosecution
under Section 540 which are available in the file, forwarded
by the High Court though those documents are not annexed
with the SLP. The prosecution filed the petition for
examination of the three witnesses stating that foreign
ingots (lagadis) have been sized from the possession of the
appellant and that warrant for search of the premises of the
appellant/accused was issued in this regard by the Assistant
Collector of Customs, namely Shri K.K. Das and hence fresh
evidence is necessary for a just decision of the case.
After perusing the depositions of the witnesses already
examined that are found on the file, we think that the
appellant/accused cannot be said to be prejudiced in any way
by examination of these three witnesses. PW-2 who was then
working as Superintendent of Customs in the office of the
Assistant Collector of Customs at Adipur during the relevant
period has stated that Shri K.K. Das who was the then
Assistant Collector of Customs issued the warrant dated
7.9.1971 authorising Shri Mirchandani, Superintendent of
Customs, Adipur to search for the prohibited and dutiable
goods and documents in the premises mentioned in the
warrant. It is elicited from the same witness in the cross
examination that the gold ornaments were seized since the
sizing authority doubted that they are smuggled gold and
procured by contriving the Gold Control Act. It is seen
from the evidence of PW-3 that he and others inclusive of
Superintendent Mirchandani went to the house of the
appellant and they seized the gold ornaments Dhalia, that
is, primary gold under Panchnama and search list Exts. 24
and 25. Therefore, the appellant’s grievance that he has
been taken by surprise on the request of the prosecution for
taking fresh evidence; that the evidence sought to be
obtained is only for filling up the lacuna and the judgment,
impugned is prejudicial to him cannot be countenanced. Of
the three witnesses, permitted to be summoned and examined
on the side of the Union of India, the Mint Master is only
an assayer. In our considered opinion, the facts and
circumstances of the case require the examination of these
three witnesses for a just decision of the case as held by
the High Court.
In the light of the proposition of law which we have
derived in the preceding portion of the judgment there is no
illegality in summoning the witnesses after the closure of
the defence arguments. It is seen from the order of the
Trial Court that the argument of the prosecution has not
yet begun. Since we feel that any further observation of
ours in justification of this order may prejudice the
defence of the appellant
727
before the Trial Court, we are not inclined to discuss the
evidence any further.
A decision of this Court in Mir Mohd. Omar and Other
v. State of West Bengal, [1989] 4 SCC 436 was relied upon to
show that after the examination of the accused under Section
313 of the new Code (corresponding to Section 342 of the old
Code) the prosecution should not move the Trial Judge for
recalling a witness already examined, but the observation
made in that decision has no application to the present case
because in that case the said observation was made in a
different context by this court while examining the plea of
the prosecution in making corrections of the evidence
already recorded under Section 272 of the Code and that
decision does not deal with the ambit of Section 540 of the
Code.
The other contention raised on behalf of the appellant
is that the order of the Magistrate rejecting the
application of the prosecution under Section 540 is not a
revisable order under Section 397(1) as it being an
interlocutory order and even if it is not so, the second
revision by the same party-i.e. Union of India is not
entertainable in view of the statutory bar under Section
397(3) of the new Code as the Union of India has already
availed the revision under Section 397(2) before the Session
Judge. We may straightaway reject this plea on the simple
ground that the prosecution in the present case was launched
under the old Code and as such the only provision of the old
Code have to be applied as per Section 484 of the new Code.
The fervent plea of the appellant is though the prosecution
was instituted under the old Code he should not be denied
the benefit and advantage of Section 397(2) and (3) of the
new Code. We are afraid that we could accede to this
inexorable request of the appellant for two reasons, namely,
that the appellant has not challenged the maintainability of
the second revision, filed and heard after the commencement
of the new Code before the High Court, claiming advantage of
Section 397(3) of the new Code and secondly he participated
in the revision proceedings throughout under the old Code.
Having failed in the revision he has no justification to
raise this point before this Court, especially when the
proceedings under the old Code are saved by Section 484 of
the new Code.
As far as the question whether an order under Section
540 of the old Code is an inerlocutory order or a final
order, need not be gone into as that question does not arise
in these proceedings. We would like to point out before
parting with this judgment that though the High Court by its
impugned judgment directed the Union of India to
728
examine the three witnesses, in fact it has allowed all the
four revision applications inclusive of the revision
application Nos. 124 and 125 of 1978 filed by the State of
Gujarat seeking the same prayer as that of the Union of
India. The appellant as we have pointed out in the
prefatory portion of this judgment that that part of the
judgment of the High Court allowing the two revisions filed
by the State Government remains unchallenged. Further we
would like to point out that the High Court in its
concluding paragraph of its judgment instead of using the
words “I …… direct” ought to have used the word “I …..
permit”.
For all the reasons stated above we hold that the
judgment of the High Court does not suffer from any
illegality or perversity calling for an interference at the
hands of this Court and as such the appeals are liable to be
dismissed as devoid of any merit. However, we direct the
Trial Court to afford a fair opportunity to the
appellant/accused to cross-examine the witnesses sought to
be examined by the Union of India and also to lead rebuttal
evidence if the appellant so desires. Accordingly these two
appeals are dismissed.
Y.L. Appeals dismissed.
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