1991 (2) TMI 142 - SC - Customs

Whether the High Court has gravely erred in allowing the second revision petitions filed by the respondent by ignoring the weighty reasons given by the Trial Magistrate and the Sessions 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? Held that - 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. 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 before the Trial Court we are not inclined to discuss the evidence any further. The judgment of the High Court does not suffer from any illegality or perversity. Appeal dismissed.

Summary

Issues Involved:
1. Legality of the High Court allowing the second revision petitions.
2. Applicability of Section 540 of the old Code (Section 311 of the new Code).
3. Whether the High Court's decision to allow additional evidence was prejudicial to the appellant.
4. Whether the order under Section 540 is an interlocutory order or a final order.
5. Procedural issues related to the application of the old Code versus the new Code.

Detailed Analysis:

1. Legality of the High Court allowing the second revision petitions:

The appellant challenged the High Court's decision to allow the second revision petitions filed by the respondent, arguing that it ignored the weighty reasons given by the Trial Magistrate and the Sessions Judge. The appellant contended that the High Court permitted the prosecution to bolster its case by filling up lacunae, which would be detrimental and prejudicial to the appellant. The High Court had criticized the prosecution for its lethargic attitude but allowed the revisions, directing the Union of India to examine three witnesses within a fortnight and permitting the accused to cross-examine them.

2. Applicability of Section 540 of the old Code (Section 311 of the new Code):

The judgment extensively discusses the scope and intent of Section 540, which allows the court to summon or recall witnesses if their evidence appears essential to the just decision of the case. The section is divided into two parts: the first part is permissive, giving discretionary authority to the court, while the second part is mandatory, imposing an obligation on the court to summon and examine witnesses if their evidence is essential. The court emphasized that this section should be invoked judicially and not capriciously, ensuring that justice is done.

3. Whether the High Court's decision to allow additional evidence was prejudicial to the appellant:

The appellant argued that the High Court's order to recall and summon witnesses was prejudicial and allowed the prosecution to fill gaps in its case. However, the court found that the appellant would not be prejudiced by the examination of the three witnesses. The facts and circumstances of the case required their examination for a just decision. The court noted that the prosecution's request for additional evidence was justified and did not unfairly disadvantage the appellant.

4. Whether the order under Section 540 is an interlocutory order or a final order:

The appellant contended that the order of the Magistrate rejecting the prosecution's application under Section 540 was an interlocutory order and not revisable under Section 397(1). Even if it was not an interlocutory order, the second revision by the same party was not entertainable under Section 397(3) of the new Code. The court rejected this plea, stating that the prosecution was launched under the old Code, and the provisions of the old Code applied as per Section 484 of the new Code. The appellant had not challenged the maintainability of the second revision before the High Court and participated in the proceedings under the old Code.

5. Procedural issues related to the application of the old Code versus the new Code:

The court addressed the procedural issue of whether the appellant should benefit from Section 397(2) and (3) of the new Code, given that the prosecution was instituted under the old Code. The court held that the appellant could not claim the advantage of the new Code, as the proceedings under the old Code were saved by Section 484 of the new Code. The appellant had not raised this issue before the High Court and participated in the revision proceedings under the old Code.

Conclusion:

The Supreme Court upheld the High Court's judgment, finding no illegality or perversity in allowing the prosecution to recall and examine additional witnesses. The court directed the Trial Court to afford the appellant a fair opportunity to cross-examine the witnesses and lead rebuttal evidence if desired. The appeals were dismissed as devoid of merit.