JUDGMENT.- This revision is directed against the order passed by the Fourth Additional Judical First Class Magistrate, Vijayawada in C.F. No. 451 of 1982 in C.C. No. 333 of 1979. 2. The learned Assistant Public Prosecutor filed a memo on 9th February, 1982, requesting the learned Magistrate to issue summons to the clerk of the Court of the VI Additional Judicial First Class Magistrate, Vijayawada to cause production of the acquittance register (pay bill register) from 1st April, 1979 to 11th July, 1980, and recall D.W. 1 for further cross-examination on the basis of the above record. That petition was opposed by the accused. The learned Magistrate allowed the memo. under section 311, Criminal Procedure Code, on the ground that the recalling and re-examination of D.W. 1 is necessary for the production of the acquittance register from 1st April, 1979 to 11th July, 1980, and for confronting D.W. 1 on the point whether the accused can sign in English or not, and it is necessary so that the Court an arrive at the just decision of the case. 3. The learned Magistrate also took the view that the scope of section 311, Criminal Procedure Code, is very wide and any amount of evidence can be adduced for just decision of the case before the pronouncement of judgment and this includes the production of document and examining the defence witnesses as in the prosecution case on the basis of the document. 4. Sri T. Bali Reddy, the learned Counsel for the petitioner, contends that the learned Magistrate has not properly appreciated the scope and effect of the provisions of section 311, Criminal Procedure Code. He contends that when P.W. 3, who is a prosecution witness himself, admits that the accused does not know English and the same was corroborated by the defence witness, D.W. 1, it is not open to the Magistrate to summon the, acquittance register from 1st April, 1979 to 11th July, 1980 as it is neither necessary nor it is warranted under law since the summoning of the clerk of the Court to rebut the evidence of D.W. 1 is prohibited by law. In support of his contention he relied upon the decision of the Supreme Court in Jamatraj v. State of Maharashtra1 and also the decision of the Madras High Court, In re. V. Mahadevan2. 5. In support of his contention he relied upon the decision of the Supreme Court in Jamatraj v. State of Maharashtra1 and also the decision of the Madras High Court, In re. V. Mahadevan2. 5. The learned Public Prosecutor, on the other hand, contends that if the Court feels it essential to summon any witness as a Court witness for just decision of the case, it is always open to the Magistrate to summon such a witness and examine him at any stage and section 311, Criminal Procedure Code, gives that power to the Magistrate. 6. Section 311, Criminal Procedure Code of the present Code corresponds to section 540 of the old Code. The scope and effect of section 540 became the subject-matter of several decisions of the various High Courts as well as the Supreme Court. The Supreme Court examined the scope and effect of section 540 in Jamatraj v. State of Maharashtra1. In that case after the prosecution evidence was closed, the accused was examined under section 342, Criminal Procedure Code, and he stated that he had no defence evidence but filed a written statement and claimed that no offence has been disclosed against him in the prosecution case as alleged before the Court. That statement was filed on 15th July, 1965. The following day, the prosecution applied for the examination of Dutta, Inspector of Customs, Bombay as a Court witness in the interest of justice. Dutta gave evidence as a Court witness. After Dutta's evidence one of the accused (Govani) was examined under section 342, Criminal Procedure Code, again and was given an opportunity to lead defence evidence. He stated that he had nothing further to add and no defence evidence to lead. The Magistrate after considering the arguments convicted Govani and sentenced him to one year's rigorous imprisonment and a fine of Rs. 2,000 in default further rigorous imprisonment for six months for each of the two counts. Govani appealed to the High Court. His contention in the High Court was that the evidence of Dutta was improperly received by the Magistrate and therefore it should be excluded. But the High Court rejected these contentions and upheld the conviction. Hence Govani appealed to the Supreme Court by Special Leave. Govani appealed to the High Court. His contention in the High Court was that the evidence of Dutta was improperly received by the Magistrate and therefore it should be excluded. But the High Court rejected these contentions and upheld the conviction. Hence Govani appealed to the Supreme Court by Special Leave. The grant of special leave was, therefore, limited to the question whether the evidence of Dutta was improperly received by the Magistrate and whether, if excluded, the conviction of Govani can be supported. It is in this context that their Lordships examined the scope and effect of section 540 , Criminal Procedure Code, and observed that section 540 gives a power to the Court to summon a material witness or to examine a person present in Court or to recall a witness already examined. It confers a wide discretion on the Court to act as the exigencies of justice require. Another aspect of this power and complementary to it is to be found in section 165 of the Indian Evidence Act. These two sections confer jurisdiction on the Judge to act in aid of justice. 7. section 540 is in two parts. The first part gives a discretionary power but the latter part is mandatory. The use of the word “may” in the first part and of the word “shall” in the Second part firmly establishes this difference. Under the First part which is permissive, the Court may act in one of three ways: (a) summon any person as a witness; (b) examine any person present in Court although not summoned; and (c) recall or re-examine a witness already examined. The second part is obligatory and compels the Court to act in these three ways or any one of them, if the just decision of the case demands it. 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 is clear that the requirement of just decision of the case does not limit the action to something in the interest of the accused only. The action may equally the prosecution. There are, however, two aspects of the matter which must be distinctly kept apart. It is clear that the requirement of just decision of the case does not limit the action to something in the interest of the accused only. The action may equally the prosecution. There are, however, two aspects of the matter which must be distinctly kept apart. The first is that the prosecution cannot be allowed to rebut the defence evidence unless the prisoner brings forward something suddenly and unexpectedly. This was laid down by Tindal, C.J., in words which are oft-quoted: “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 witness, 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 ex-improviso, which no human ingenuity can foresee on the part of the defendant in a civil suit, or a prisoner in a criminal case, there seems to me no reason why that matter which so arose ex-improviso may not be answered by contrary evidence on the part of the Crown.” Then Lordships further observed as follows: “There is, however, the other aspect namely of the power of the Court which is to be exercised to reach a just decision. This power is exercisable at any time and the Code of Criminal Procedure clearly so states.” 8. In paragraph 13 their Lordships dealt with two questions referred to earlier. Their Lordships held that in either case was there any unexpected move by the prisoner and the evidence was therefore, wrongly admitted. 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. 9. In paragraph 14 their Lordships observed that it would appear that in our criminal jurisdiction, statutory law confers a power in absolute terms to be exorcised 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 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. 10. Their Lordships also took into consideration the decision of the, Madras High Court In In re, V. Mahadevari,1 rendered by Somasundaram, J. The learned single Judge observed that section 540 consists of two parts: (1) giving the discretion to Court to examine the witnesses at any stage; and (2) the mandatory portion which compels as Court to examine a witness as if his evidence appears to be essential to the just decision of the case. The direction that is given under this section is very wide and the very width requires caution in using the power given to a Court under that section. By its very nature, the direction to be exercised under the section depends on the facts of each case. It is difficult to lay down a general rule as to when and under what circumstances¡ a direction ought to be exercised. The second part of section 540 enjoins the Court to call a witness if it thinks the evidence of a particular witness is essential for the just decision of the case. But where, a person to be called as a Court witness happens to be essentially a 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 under section 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 this section. 11. 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 this section. 11. From the above ruling, it is clear that though section 540 gives power to the Court to examine a person as a Court witness at any stage, Court should exercise this power only when it feels that the evidence of such a witness is essential for a just decision of the case. It is true that Court, in exercise of this power given under section 540, can examine a witness at the instance of the prosecution or defence. But still the Court should decline to exercise the power under section 311 and examine a witness when the prosecution seeks to examine him because it could not examine him, though it had intended to do so. If the defence produces some material unexpectedly to the surprise of the prosecution, it is open to the Court to summon a witness under section 311 (540 old) to clarify the position so that the Court can arrive at a just decision of the case. This does not mean that the Court can permit the prosecution to examine a witness as a Court witness to rebut the defence evidence. 12. In this case the plea of the accused is consistent that he was not conversant with English and he cannot sign in English. He is working as an attender in the Court. The officers under whom he works knows whether the accused can sign in English or not, and whether he is conversant with English or not. The officers concerned are available for giving evidence on this aspect. Further the acquittance register (Pay Bill Register) is available to the prosecution. But the prosecution did not choose to examine any of the witnesses concerned or summon the acquittance register (Pay Bill Register) to prove that the accused can sign in English or to prove that the accused is conversant with English. Further the acquittance register (Pay Bill Register) is available to the prosecution. But the prosecution did not choose to examine any of the witnesses concerned or summon the acquittance register (Pay Bill Register) to prove that the accused can sign in English or to prove that the accused is conversant with English. When the prosecution did not choose to examine the concerned officers nor did it make any effort to cause production of those registers and when P.W. 3 made an admission in his cross-examination that the accused does not know English, the prosecution did not choose to take any steps to cause production of the acquittance register or examine the concerned officers. Having failed to do so, the prosecution cannot be permitted to seek for the production of the acquittance register or summon the clerk of the Court, for the purpose of rebutting the defence evidence. Such an attempt was deprecated by the Supreme Court in the above cited decision. Hence, the order of the lower Court, is contrary to the provisions of section 311 and is, therefore, vitiated with illegality. The impugned order is set aside. 13. In the result, the criminal revision case is allowed. R.S.R. ----- Crl. R. C. allowed.