TMI Blog1991 (2) TMI 142X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. 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. - 4 and 5 of 1979 - - - Dated:- 22-2-1991 - S. Ratnavel Pandian and K. Jayachandra Reddy, JJ. [Judgment per : 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 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." 3.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 125 of 1978 filed by the Gujarat Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... summoned as(2) witness, or to recall and re-examine any person already examined.(3) The second part which is mandatory imposes an obligation on the Court - to summon and examine, or(1) to recall and re-examine any such person if his evidence(2) appears to be essential to the just decision of the case. 8.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 judicially with circumspection 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. 9.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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Magistrate under Section 248(3) [Section 251A(13) and 225A 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 convictions 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 Session 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. 12.Under Section 391 (Section 428 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustice". 15.The second part of Section 540 as a 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 of some evidence being taken, then the Court has to exercise its power under this provision - either discretionary 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 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 jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 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. 18.Fazal Ali, J. in Rameshwar Dayal v. State of U.P. - 1978 (2) S.C.C. 518 while expressing his view 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant. 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." 21.Gajendragadkar, J. speaking for the Bench in Tulsidas Mundhra (cited supra) has pointed out as follows : "Section 540 in terms applied at any stage of any enquiry, trial or other proceeding under this Code. The section is wide enough to include a proceeding under Section 207A and so, it would be unreasonable to contend that the scheme of Section 207A makes Section 540 inapplicable to the proceeding governed by Section 207A. The power of the Court under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the examination of any person which would depend on the facts and circumstances of each case. 27.What falls for determination now is whether the person indicted 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence. As pointed out by the High Court in its impugned order, gold, silver and 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 the foreign markings on the lagadis 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 S.L.P. The prosecution filed the petition for examination of the three witnesses stating that foreign ingots (lagadis) have been seized 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew 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. 33.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 provisions of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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