RAMANLAL MADHAVLAL KHARVA v. STATE — 1972 DIGILAW 2 (GUJ)

D. A. DESAI, J. ( 1 ) J. Petitioner Ramanlal Madhavlal Kharva is the original complainant in Criminal Case No. 8310 of 1969 pending in the Court of 8 Joint Civil Judge (Junior Division) and Judicial Magistrate First Class Baroda. Petitioner filed a criminal complaint against opponents Nos. 2 3 and 4 alleging that on 25th November 1969 opponent No. 2 aided and abetted by opponents Nos. 3 and 4 abducted Bai Kumud daughter of opponent No 2 with whom the petitioner is alleged to have contracted marriage on 24 November 1969 at Broach. The complainant after examining himself in support of his complaint proceeded to examine certain witnesses and gave a statement Exh. 70 informing the court that for the present he does not wish to examine any more witness. At that stage an application Exh. 72 was made by the accused informing the court that Bai Kumud who was alleged to have been abducted was the most material witness in the case and as the complainant did not wish to examine her she should be examined as a court witness under sec. 540 of the Criminal Procedure Code. This application was opposed by the complainant on the diverse grounds. Before passing the order on the application learned Magistrate inquired from the complainant whether he was willing to examine Bai Kumud as prosecution witness and the complainant declined to give any affirmative statement on this point at that stage. Thereafter the learned Magistrate proceeded to hear both the parties and granted the application. The order of the learned Magistrate is not clear whether he considered the case to fall within first part of sec. 540 or second part. On the whole it appears that the learned Magistrate considered the evidence of witness Bai Kumud essential for the just decision of the case. The complainant having been dissatisfied with this order preferred Criminal Revision Application No. 25 of 1921 in the court of the learned Sessions Judge at Baroda. The learned Extra Additional Sessions Judge Baroda by his order dated 31st August 1971 dismissed the revision application and confirmed the order of the learned Magistrate. The complainant having been dissatisfied with this order has preferred this revision application. ( 2 ) MR. S. B. Majmudar learned advocate who appeared for the petitioner urged that the stage at which the case had reached when application - Exh. The complainant having been dissatisfied with this order has preferred this revision application. ( 2 ) MR. S. B. Majmudar learned advocate who appeared for the petitioner urged that the stage at which the case had reached when application - Exh. 72 was given on behalf of the accused was such a stage in course of inquiry or trial at which it was not open to the learned Magistrate to examine Bai Kumud as court witness. Sec. 540 of the Criminal Procedure Code which confers powers on the court for summoning material witnesses or examining any witness present in the court reads as under:-540 Any court may at any stage of any inquiry trial or other proceeding under this Code summon any person as a witness or examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined and the court shall summon and examine or recall and re-examine such person if his evidence appears to it essential to the just decision of the case. THE opening line of the section clearly defines the area of operation of the section. Power conferred on the Magistrate or for that matter on any court. governed by the Criminal Procedure Code is very wide and horizon of the power is discernible from the repeated use of the word any qualifying both the stage of the inquiry and trial in sec. 540 Bare perusal of the section would show that it is open to the court to summon and examine any witness at any stage of inquiry or trial. The section does not take into account the stage at which the inquiry or trial has reached when power under sec. 540 can be exercised. The Legislature intended to confer power of widest amplitude on the court under sec. 540 for the purpose of enabling the court to examine any witness at any stage of any inquiry or trial. The purpose behind the section appears to be that the court should exercise this power of widest amplitude unfettered or untrammeled by any consideration of stage at which the inquiry or trial has proceeded. The section is divided into two parts. The purpose behind the section appears to be that the court should exercise this power of widest amplitude unfettered or untrammeled by any consideration of stage at which the inquiry or trial has proceeded. The section is divided into two parts. First part confers discretion upon the court to 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 already examined at any stage of inquiry trial or other proceeding under the Code of Criminal Procedure. Second part is mandatory in form and it casts a duty upon the court to summon and examine or re-call and re-examine any such witness if his evidence appears to it essential to the just decision of the case. Therefore once the court reaches a conclusion that the evidence of any particular witness neither examined by the prosecution nor examined by defence appears to the court essential to the just decision of the case the court in order to perform paramount duty cast upon it namely to do justice between the parties must examine such a witness untrammeled and unfettered by any other provisions of the Criminal Procedure Code. The section may not be used to give one party unfair advantage over the other. But the court is constituted to discharge the paramount duty namely to do justice between the parties and if in performance of this duty the court in order to arrive at a just decision of the case considers it essential to summon and examine any witness no other provisions of the Code can stand in the way of the court to summon and examine such a witness. That seems to be the purpose underlying sec. 540. The section ignores the stage at which the proceeding has reached. The power thereunder may be exercised at any stage of the proceeding It may be a stage anterior to the framing of 8 charge. It may be a stage fore the defence has closed its evidence and the case is set down for arguments. It may be any stage before pronouncing judgment in the case when the court would become functus officio. Such power of the widest amplitude is conferred by sec. It may be a stage fore the defence has closed its evidence and the case is set down for arguments. It may be any stage before pronouncing judgment in the case when the court would become functus officio. Such power of the widest amplitude is conferred by sec. 540 on the court and by any interpretation it cannot be whittled down so as to deprive the court of such wholesome power which would enable it to perform the paramount duty cast upon it namely to do justice between the parties. In ultimate analysis every procedure is devised to advance course of justice and no procedural provision can stand in the way to retard justice. The section cannot be interpreted so as to whittle down the power which was wisely conferred upon the court and a mere look at the section permits me to reach this conclusion. ( 3 ) MR. Majmudar however urged that the section cannot be read ignoring the other provisions in the Criminal Procedure Code. In other words Mr. Majmudar wanted to urge that the section must fit in with various stages of inquiry or trial set out in different chapters of the Criminal Procedure Code. According to Mr. Majmudar if sec. 540 is required to be used or resorted to in trial of a warrant case it must be so interpreted 40 as to fit in some where in Chapter 21 of the Criminal Procedure Code. If it is to be resorted to in the trial of the summons case it must fit in somewhere in Chapter 20. I am afraid such an approach would wholly nullity the overriding power conferred on the court by sec. 540. In the Criminal Procedure Code different procedure has been provided for trial of summons case warrant case session case and summary case and in each such trial situation may arise where the court may have to take resort to sec. . 540. It would be an exercise in futility to take up sec. 540 and try to fit it into various stages of such different procedures. Sec. 540 must be read by itself. The court may be proceeding with any inquiry or any trial or any other proceeding. In a case tried according to the procedure prescribed in Chapter 21 for the trial of warrant case instituted upon a complaint sec. 540 and try to fit it into various stages of such different procedures. Sec. 540 must be read by itself. The court may be proceeding with any inquiry or any trial or any other proceeding. In a case tried according to the procedure prescribed in Chapter 21 for the trial of warrant case instituted upon a complaint sec. 252 requires that the complainant shall be examined and thereafter the witness shall be examined. Next stage is framing of a charge. Stage hereafter is recalling prosecution witnesses already examined for further cross-examination. If the accused is discharged the matter ends there. After all the witnesses of the prosecution are cross-examined it would be open to the prosecution to examine further witnesses and after their cross-examination is over accused is called upon to enter his defence. Now if the court moves from one stage to another as set out in secs. 252 253 254 256 and 258 and if each stage is immutable for any purpose sec. 540 would be rendered nugatory. These are various stages through which trial would proceed. But whenever a question arises a whether a material witness should be examined or evidence of such a witness is essential for the just decision of the case the court can resort to sec. 540. This is the overriding effect of the provision contained in sec. 540. If this is the proper interpretation of sec. S40 the contention of Mr. Majmudar that as the case was set down for framing of a charge after the complainant dose his case it was not open to the court to entertain an application given by the accused is without any substance. ( 4 ) MR. Majmudar wanted next to contend that the Magistrate had no jurisdiction to entertain such an application before framing the charge or before considering whether a prima facie case is made out which if unrebutted would warrant a conviction. Such an interpretation may give unfair advantage to the prosecution itself. The prosecution may deliberately not examine material prosecution witnesses. The court if it considers evidence of a certain witness material at this stage and if it cold not resort to sec. 540 it would be compelled to proceed further with the trial without the assistance of the evidence of such material witness. In order to avoid some such gimmicks of the parties to a proceeding that provision like sec. The court if it considers evidence of a certain witness material at this stage and if it cold not resort to sec. 540 it would be compelled to proceed further with the trial without the assistance of the evidence of such material witness. In order to avoid some such gimmicks of the parties to a proceeding that provision like sec. 540 is enacted which would enable the court to suo motu summon any witness and record his evidence and this power should ordinarily be exercised for performing paramount duty cast upon the court namely to record a just decision in the case. It need out be exercised for giving any advantage to one over the other or to the disadvantage of some party to the proceeding. While exercising this power the court must be actuated by an intense desire to reach just decision in the case and when it feels thwarted in its attempt of doing it only because the parties on account of their partisan attitude would not examine witness that the court should resort to the provision contained in sec. 540. If in such a situation the court fails to resort to sec. 540 it would be failing to discharge duty cast upon it. ( 5 ) IN the present case the offence with which the accused are charged is one of abducting Bai Kumud. Obviously Bai Kumud would be the most material witness. The complainant claimed Kumud to the his married wife. the complainant invited the court to consider the question of framing of charge without examining Bai Kumud. if the court at that stage felt that evidence of Bai Kumud is most material or is essential for the just decision of the case it was open to the Court to examine Bai Kumud as a court witness. Mr. Majmudar in passing submitted that that was not the stage of rendering decision in the case. That is not correct. Discharging the accused is rendering decision in the case Therefore even at this stage it was open to the court to resort to sec. 540. ( 6 ) BEFORE concluding I would refer to one or two decisions to which my attention was drawn in the course of hearing. Mr. Majmudar referred to Jokhan Jha v. Ram Saran Jha and others 1967 Cr. L. J. 1444. 540. ( 6 ) BEFORE concluding I would refer to one or two decisions to which my attention was drawn in the course of hearing. Mr. Majmudar referred to Jokhan Jha v. Ram Saran Jha and others 1967 Cr. L. J. 1444. In that case an information of cognizable offence was lodged at the police station and officer in charge of the police station commenced investigation. Subsequently a private complaint was filed. After the evidence of the complainant and his witness was recorded learned Magistrate directed that the investigating officer should be examined as court witness. This order was challenged before the Division Bench of the Patna High Court Allowing the revision application it was observed that on the facts of the case learned Magistrate was not justified in examining the Police Officer as court witness at the stage at which he decided to do so. The court appears to have proceeded on the propriety of exercise of power rather than the scope and ambit of power. With respect however it may be pointed out that full import of the use of the word any at various places in the sec. 540 has been completely overlooked by the Division Bench. Mr. Majmudar however relied upon the observation which is as under:-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. x x x x x x x But the defence was entitled to examine this Police Officer after the charge has been framed against them and they had entered upon defence under sec. 254 and subsequent section of the Chapter. WHETHER in a given case the court has exercised powers under sec. 540 correctly or otherwise is a matter which can be examined by the superior court. The question is whether there is any power in the court or not and not whether it was properly exercised or not. Mr. Majmudar never attempted to urge that power was not properly exercised in this case. The extreme submission is that there was no such power in the court at the stage at which the court purported to exercise power under sec. 540. Therefore this decision will not help Mr. Mr. Majmudar never attempted to urge that power was not properly exercised in this case. The extreme submission is that there was no such power in the court at the stage at which the court purported to exercise power under sec. 540. Therefore this decision will not help Mr. Majmudar I may however also point out that it is no answer to the problem that a witness in respect of whom a suggestion is made that he should be examined as a court witness should have been examined as a defence witness. Whenever attention of the court is drawn to a fact that the evidence of certain witness is essential to the just decision of the case it can always be answered by saying that witness can be examined as a prosecution witness or as a defence witness. That would render sec. 540 entirely infructuous. Therefore this decision is of no assistance in support of the point raised in this petition. Similarly other decision relied upon by Mr. Majmudar in Chhotey Miyan v. Emperor A. I. R. 1936 Nagpur 250 is equally of no assistance in this case. In this case it is in terms stated that summoning of court witness is entirely a matter for the court to decide and it is not for the accused to insist. It is open to the accused to examine such a witness as defence witness. That is not the contention before the court. ( 7 ) I would however refer to a decision of the Supreme Court in Jamatrai v. State of Maharashtra A. I. R 1968 S. C. 178 wherein the scope and ambit of the power conferred by sec. 540 came up for consideration of the court. The court has in terms held that sec. 540 is intended to be wide as the repeated use of the word any throughout its length clearly indicates. It was Further observed that as the section stands there is no limitation on the power of the court arising from the stage to which the trial may have reached provided the court is bona fide of the opinion that for the just decision of the case the step must be taken. It was further observed that there is no substance in the argument that Chapter 21 must limit the powers under sec. 540. It was further observed that there is no substance in the argument that Chapter 21 must limit the powers under sec. 540. It was further observed that if the argument advanced on the basis of the procedure laid down in chapter 21 is accepted there would be no room for the exercise of the power under sec. 540 because it would always be impossible to fit it into any chapter without doing violence to the sequence established there. In my opinion this judgment concludes the point raised in this revision application. Therefore both on principle as well as on authority there is no substance in the contention that the court had no jurisdiction to exercise power under sec. 540 at the stage at which it was sought to be exercised namely after closure of the evidence of the prosecution and before framing of a charge. ( 8 ) THIS was the only contention raised in this revision application and as there is no merit in it the revision application fails and is dismissed. Rule is discharged. Interim stay of further proceeding granted on 24-12-1971 is hereby vacated. .