JUDGMENT : Barmn, J. - The complainant is the Petitioner in this criminal revision directed against an order dated April 1, 1959, passed by the learned Magistrate rejecting an application made by the complainant for examination of certain witnesses u/s 540 Code of Criminal Procedure in G.R. Case No.1866 of 1955. 2. The case arose out of an incident which took place more than four years ago on October 8, 1955. The First Information Report was lodged by the Petitioner on the same day. On October 22, 1955, the charge-sheet was filed in which the accused persons were charged under Sections 147, 323 and 342, Indian Penal Code. The trial commenced on December 5, 1955 on which date the prosecution witness P.W. 1 out of ten prosecution witnesses was examined. On December 9, 1955, as it appears from records, the investigating officer was summoned as a witness. On September 10, 1957, P.W. 10 was examined. On January 9, 1958 summons was issued to certain witnesses. It is clear from the order-sheet that there was inordinate delay on the part of the prosecution to examine the witnesses. In fact, as it appears from the order dated May 16, 1958, the learned Magistrate observed that the delay appeared to be vexatious and therefore on June 8, 1958, the evidence of certain witnesses was directed by the learned Magistrate to be expunged by reason of the prosecution not having offered the said witnesses for cross-examination. For ready reference, the order dated June 8, 1958, as appears from the order-sheet, reads as follows: Put up tomorrow. I find undue day to prolong the trial. The chances offered are not availed of by prosecution. Expunge the evidence of P.Ws. who are not offered for cross-examination. Put up on 25/6 for statement of accused. On June 25, 1958 statements of the accused persons were taken. On September 29, 1958, the case was transferred to another magistrate for disposal according to law. The case was posted on October 29, 1958. Arguments were heard on December 3, 1958, and it was not until December 26, 1958 that the complainant made an application making a prayer before the magistrate for examination of certain witnesses including the investigating officer u/s 540 Code of Criminal Procedure which, however, was rejected. In revision against the said order, the Additional District Magistrate also rejected the revision. Arguments were heard on December 3, 1958, and it was not until December 26, 1958 that the complainant made an application making a prayer before the magistrate for examination of certain witnesses including the investigating officer u/s 540 Code of Criminal Procedure which, however, was rejected. In revision against the said order, the Additional District Magistrate also rejected the revision. It is noticed that no revision was filed against the order of the Additional District Magistrate made, as aforesaid, on January 20, 1959. On April 1, 1959 the complainant made a second application for examination of the witnesses u/s 540 Code of Criminal Procedure which also was rejected. It is against this order dated April 1, 1959 that the present application has been filed. 3. Mr. S.K. Ray, learned Counsel for the complainant-Petitioner, contended that the learned Magistrate was wrong in not making a order for examination of these witnesses which was very material for the purpose of this case. He also contended that in Section 540 Code of Criminal Procedure the first part of the section is discretionary the second part is mandatory. In other words, according to him, once the Magistrate is satisfied that the evidence appears to him to be essential to the just decision of the case then he must summon such witnesses. So far as the Magistrate's satisfaction is concerned, it is subjective satisfaction and it is discretionary but such discretion must be judicial discretion. The investigating officer's evidence is claimed to be essential for this case and therefore he should have been called. If the Magistrate thinks that certain evidence is necessary for the just decision of the trial of an offence, he is bound to bring that evidence upon the record under the provisions of Section 540. The Magistrate, however, should not of course examine any witness u/s 540 merely because the complainant chooses to suggest the witness but if he himself thinks that the evidence of the witness is essential he is not only allowed to examine the witness but is, by law, bound to do so. u/s 540 the Court has unrestricted powers of summoning a witness subject to the only restriction that the power should not be exercised to save the parties from the trouble and expense. u/s 540 the Court has unrestricted powers of summoning a witness subject to the only restriction that the power should not be exercised to save the parties from the trouble and expense. Subject to the above restriction it is not only the prerogative but also the plain duty of a Court to examine such of the witnesses as it considers necessary for doing justice between the State and subject. A Judge is not placed in the high situation merely as a passive instrument of the parties. He has a duty of his own, independent of them and that duty is to investigate the truth. Counsel seek only for their clients' success but the Judge must watch that justice triumphs. Ram Bharosey and Another Vs. Emperor, and Rengaswami Naicker Vs. Muruga Naicken, . 4. On the particular aspect, in this case, that the witness who the complainant prayed, should be called to be examined, was a material witness. Mr. S.K. Ray contended that in a criminal trial it is of the utmost importance that the prosecution would examine the investigating officer, whose absence places the accused sometimes at a great disadvantage. The Courts trying such important cases should always insist on the examination of the investigating officer, for his examination is of great assistance to the Court and also to the accused Dibakar Sarangi v. The State 21 CLT 451. 5. Mr. P.C. Chatterji, learned Counsel for the accused opposite parties, however, contended that on the facts of this case the learned Magistrate was right in refusing examination of the witnesses. In this context he drew my attention to the amendment made in Section 350 Code of Criminal Procedure in 1955. Before the amendment, in any trial the accused could demand that the witnesses or any of them be re-summoned and reheard whenever a Magistrate after having heard and recorded the whole or any part of the evidence in an enquiry or a trial, ceased to exercise jurisdiction therein, and was succeeded by another Magistrate. Before the amendment, in any trial the accused could demand that the witnesses or any of them be re-summoned and reheard whenever a Magistrate after having heard and recorded the whole or any part of the evidence in an enquiry or a trial, ceased to exercise jurisdiction therein, and was succeeded by another Magistrate. This right of the accused was, however, taken away by the amending Act of 1955 (Act XXVI of 1955) which took away the right of the accused which he had before the amendment and provided that if the succeeding Magistrate is of opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interests of justice he may resummon any such witness. The underlying principle of the proviso to Section 350 and Section 540 is the same. u/s 350 it is in a case where the Magistrate is of opinion that evidence of a particular witness is "necessary" and u/s 540 where the Magistrate thinks that such evidence is "essential" that such witness may be examined. Thus we find that in the matter of examination of witnesses the Magistrate has been given wider discretion. 6. As to the contention that the investigating officer is a material witness whose evidence is essential, Mr. Chatterji relied on a decision of this Court in Hari Panda and Ors. v. The State 22 CLT 247, where it was held that as a general statement of law the non-examination of the investigating police officer, specially in a serious case, may very often cause material prejudice to the accused. But the question ultimately depends on whether taking all the circumstances into consideration a Court can reasonably hold that prejudice has been caused. In the present case before me it clearly appears from the order-sheet that the investigating officer as not examined for three years since the trial commenced in 1955. It is manifestly apparent on the face of the record that the prosecution has not been serious in the conduct of the case. In fact, the evidence of some of the prosecution witnesses was directed to be expunged, as it appears from the order-sheet, because those witnesses were not offered for cross-examination. It is manifestly apparent on the face of the record that the prosecution has not been serious in the conduct of the case. In fact, the evidence of some of the prosecution witnesses was directed to be expunged, as it appears from the order-sheet, because those witnesses were not offered for cross-examination. It is contended that the learned Magistrate rightly expunged the evidence of certain witnesses for which there appears to be authority in a case decided by this Court in Gobinda Prasad Bhagat Vs. Ram Prasad Bhagat and Others. It is contended that the prosecution case is already crippled by various orders passed by the learned Magistrate. 7. The discretion that is given u/s 540 Code of Criminal Procedure is very wide and the very width requires a corresponding caution in using the power given to a Court under that section by its very nature, the discretion to be exercised under the section depends on the facts of each case. It is difficult to lay don a general rule as to when and under what circumstances the direction ought to be exercised. Where a person to be called as a Court witness happens essentially witness for the prosecution who should have cited him either in the charge-sheet or immediately afterwards, the failure of the prosecution to call him as a witness cannot be made up by the Court exercising its power u/s 540. Although the Court can examine a witness at the instance of the prosecution or defence, still when the prosecution asks the Court to examine him because it could not examine him, though it had intended to do so, that should be no ground for the Court to exercise its discretion under that section. The rule was laid-down by Chief Justice. Tindal in Reg v. Frost (1839) 9 C. & P. 129, where the Lord Chief Justice said: There is no doubt that the general rule is that where the Crown begins its case like a Plaintiff in a civil suit, they cannot afterwards support their case by calling fresh witnesses because they are met by certain evidence that contradicts it. They stand or fall by the evidence they have given. They must close their case before the defence begins, but if any matter arises. They stand or fall by the evidence they have given. They must close their case before the defence begins, but if any matter arises. Ex improviso which no human ingenuity can foresee, on the part of a Defendant in a civil suit, or a prisoner in a criminal case, there must be no reason why that matter which so arose ex improviso may not be answered by contrary evidence on the part of the Crown. This rule was adopted in King v. Dora Harris (1927) 2 K.B. 587, 594, 496 where Avory, J. delivering the judgment held that in that particular case, the course that was adopted was irregular and was calculated to do injustice to the accused-Appellant. The English law proceeds on the principle that the practice of calling witnesses should be limited to cases where a matter arises ex improviso which no human ingenuity can foresee otherwise injustice will ensue. In India, we are governed by Section 540 Code of Criminal Procedure, the first part of which gives a very wide discretion similar to that enjoyed by English Courts. The second part of the section enjoins the Indian Court to can a witness if it thinks the evidence of a particular witness is essential to the just decision of the case. Even then, the question here is whether when the prosecution-knowing funny well and being in possession of all the materials, which can be spoken to by a particular witness and intending to can him as a witness and intimating to the Court at one stage that it intends to call him as a witness, fails to do so, the Court can exercise its powers to call such a person as a Court witness. The exercise of the power of the Court in the circumstances will only amount to filling up a gap in the prosecution case. The failure of the prosecution to call a particular witness as a witness, cannot be made up by the Court by exercising its power u/s 540 Code of Criminal Procedure . The exercise of the power of the Court in the circumstances will only amount to filling up a gap in the prosecution case. The failure of the prosecution to call a particular witness as a witness, cannot be made up by the Court by exercising its power u/s 540 Code of Criminal Procedure . Although the Court can examine a witness at the instance of the prosecution or defence, still when the prosecution asks the Court to examine him because it could not examine him, though it had intended to do so, that should be no ground for the Court to exercise its discretion u/s 540 Code of Criminal Procedure In (sic) K.V.R.S. Mani AIR 1951 Mad 707 . 8. Mr. P.C. Chatterji, learned Counsel for the accused opposite parties, contended that there was a long protracted trial of this case causing harassment to the parties and the consequence of this inordinate delay in the conduct of the case was financial hardship to the parties. The Calcutta High Court in Natabar Ghose Vs. Adya Nath Biswas, on the facts that after both, sides had closed their respective cases and after arguments had been heard and a date had been fixed for delivery of judgment, two witnesses who were named by the prosecution were examined before the Magistrate, the Magistrate having exercised his powers u/s 540 Code of Criminal Procedure, it was held by the High Court, in revision, that the procedure adopted by the Magistrate was entirely unjustifiable sentence was set aside and retrial ordered. The power u/s 540 is not to be exercised to fill up gaps in the prosecution case. Where it has not been shown that a witness could not be summoned by the prosecution under normal procedure, if later on it was found by the prosecution that the evidence is insufficient, it is not permissible in appeal to assail the Magistrate by saying that he should have exercised powers u/s 540 and examined the witness to make up the deficiency The state v. Prakash chand AIR 1955 MB 209 . 9. Mr. S.K. Ray, learned Counsel for the complainant Petitioner, also commented on the fact that the learned Magistrate did not apply his mind as to whether the evidence of the witnesses was essential. 9. Mr. S.K. Ray, learned Counsel for the complainant Petitioner, also commented on the fact that the learned Magistrate did not apply his mind as to whether the evidence of the witnesses was essential. According to him, the learned Magistrate simply followed the decision dated January 20, 1959 of the Additional District Magistrate in revision from the first order of refusal dated December 26, 1958 made by the Magistrate u/s 540. He also commented that the learned Magistrate failed to exercise his own discretion in the matter judicially as he should have done. The order, however, shows that the Magistrate observed that he saw no reason to differ from the order of the Additional District Magistrate. That, however, in my opinion clearly shows that the learned Magistrate had indeed applied his mind to the case and given his decision and in so doing he had considered the previous orders made by the Magistrate and also by the Additional District Magistrate in revision in connection with the same proceedings between the same parties over the same incident. That apart, in case the complainant Petitioner was aggrieved by the previous order made by the Magistrate, it was open to him to file a revision against that order which, however, he did not. It is no use now making a grievance of the alleged position that the previous orders were also not in terms of Section 540 Code of Criminal Procedure . 10. In my opinion, having regard to the composite character of Section 540 making it mandatory subject to certain condition, namely the subjective satisfaction of the Magistrate that the evidence is essential the condition thus leaves it to the discretion of the Magistrate with which the High Court in revision should not interfere except for compelling reasons. On I the facts and in the circumstances of this particular case I think I that the learned Magistrate was justified in making the order dated April I, 1959 as aforesaid. 11. I must therefore maintain the said order of the learned Magistrate. This revision is accordingly dismissed. I must however make it clear that the learned Magistrate, trying the said G.R. Case No. 1866/55, is not bound by any of my observations in this judgment and he is free to decide the case according to law. Final Result : Dismissed