Judgment 1. The petitioner has come up to this Court against an order of an Honorary Magistrate of Samastipur, who summoned a witness as a Court witness and commenced his examination on 12.2.1965. The impugned order is dated 20th September, 1965. 2. The facts of the case are these. On the 23rd August, 1962, the petitioner filed a petition of complaint before the Sub-Divisional Magistrate, Samastipur, making out a case under S. 395 of the Indian Penal Code against 11 persons on the ground that the police was inimical towards him. The petitioner, who had received injuries, was an indoor patient in the Samastipur Hospital, and on a report from the Hospital authorities, the police instituted a case on the same facts and ultimately submitted a charge-sheet under Ss. 147 and 380 of the Penal Code. The Sub Divisional Magistrate took cognizance under Ss. 147, 323, 325 and 380 of the Penal Code, not on the police report, but on the facts made out by the complainant. So, this was a complaint case. 3. The case was transferred to a First Class Magistrate for disposal, who examined one witness for the prosecution and thereafter the case was transferred to the file of a Second Class Magistrate who adopted the procedure of a warrant trial, in spite of a protest by the complainant, and examined three witnesses for the prosecution. Thereafter the case was transferred to an Honorary Magistrate with first class powers, namely, Shree S. S. Singh. The petitioner filed a petition before him for adopting the committal procedure laid down in Chapter XVIII of the Criminal P. C. This prayer of the petitioner was rejected, however, on the 30th January, 1964. Ultimately, a few more witnesses were examined by the petitioner before this Magistrate, as also the Doctor of the Samastipur hospital. Then a Dasti summons was given by the Magistrate to the lawyer for the accused to bring the police witness, i.e., the Officer who had investigated the police case, on 12.2.1965 in order to examine this officer as a Court witness, and, in fact, the Magistrate did examine this officer in part on the 12th February, 1965; but he had to stay his hands, as the petitioner filed a petition praying for time to move the higher Courts for transfer of the case from his file. Having failed to get his remedy before the Sessions Judge of Darbhanga the petitioner came to this Court and this case was referred to a Division Bench on 19-4-1966 by one of the learned Judges of this Court. 4. Shree S. K. Jha, appearing for the petitioner, submitted that it is not a fit case for examination of any Court witness at this stage. He also submitted that, in view of the provisions of S. 352 of the Criminal P. C., there is no scope for attracting the procedure of S. 540 of the said Code in a case where the procedure of a warrant trial has been adopted. The proposition that S. 540 of the Criminal P. C. cannot be attracted in such a case is, however, too widely stated by Shree Jha, Sec. 540 consists of two parts: the first part, which is discretionary, enables a Court at any stage of an enquiry, trial or other proceeding, to summon any one as a witness or to examine any person present in Court or to recall and re-examine any witness. The second part of the section, which is mandatory, compels a Court to take in all the said three steps if new evidence appears to be essential for the just decision of the case. It will, therefore, be noticed that the discretion in the first part is very wide, but, at the same time, the Court must be very circumspect and cautious in acting under this section. The Court can call such evidence at any stage only if it is satisfied that it is essential for the just decision of the case and whether new evidence is essential or not must always depend upon the facts of each case. 5. It is now for consideration, whether the learned Magistrate was justified in summoning the Police Officer as a Court witness at this stage in the instant case. Apparently, the prosecution witnesses were examined under S. 252 of the Criminal P. C. The next stage in the warrant trial is contained in S. 253. It is laid down that, if upon taking of the evidence referred to in S. 252 and making such examinations (if any) of the accused as the Magistrate thinks necessary, he finds that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. It is laid down that, if upon taking of the evidence referred to in S. 252 and making such examinations (if any) of the accused as the Magistrate thinks necessary, he finds that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. Then comes S. 254 of the Code, which provides that, if upon the evidence and examinations referred to in Ss. 252 and 253, the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter (i.e. Chapter 21) of the Code and he has got powers to adequately punish the accused, he shall frame a charge in writing against the accused. The subsequent sections of this chapter provide for the accused to plead guilty, or not guilty, defence and further bearing of the case. It is manifest from a reading of these provisions that on the facts of the instant case, it the warrant procedure is to be adopted, the stage to examine a Court witness for the sake of justice had not arisen. The learned Magistrate could either discharge the accused, if no case had been made out against them or frame a charge against them and continue the further trial of the case as a warrant trial. It was only after the examination of all the prosecution and defence witnesses that the Magistrate should have examined, if he thought it necessary for the ends of justice, a person as a Court witness. The learned Magistrate probably decided to examine the police witness as a Court witness, because he thought that the accused could not have examined him and probably the prosecution did not like to examine him, as he was suspected to have been prejudiced against the complainant. But the defence was entitled to examine this Police Officer after the charge had been framed against them and they had entered upon defence under S. 254 and subsequent sections of the Chapter. Again, even if the procedure under Chapter 18 of the Code be adopted, then also the accused would get opportunity to examine the Police Officer under S. 208 (3) of the Code. 6. Again, even if the procedure under Chapter 18 of the Code be adopted, then also the accused would get opportunity to examine the Police Officer under S. 208 (3) of the Code. 6. On the facts of this case, therefore, the Magistrate was not justified in examining the Police Officer as Court witness at the stage at which be decided to do so. To that extent, therefore, his order dated the 20th September, 1965, must be set aside. The learned Magistrate is, however, not precluded from examining the Police Officer, or, for the matter of that, any other person as a Court witness, if he considers it accessary to do so for the sake of justice after both the parties have examined their witnesses either under the procedure contained in Chapter 18 or in Chapter 21 of the Code of Criminal Procedure. It may also be made clear that it is for the Magistrate to decide which procedure to adopt. 7. With these observations, the petition is allowed and the order dated 20-9-65 is set aside.