Mohan Lal
Shamlal Soni Vs. Union of India & Anr [1991] INSC 63 (22 February 1991)
Pandian,
S.R. (J) 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.
HEAD NOTE:
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.
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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