ORDER By this petition under S. 482 of the Criminal P.C. 1973, Shri Avtar Singh Bhasin petitioner has assailed the order of the Judicial Magistrate 1st Class (I), Shimla dt. 12-4-1989 passed in case No. 38/2 of 1986, whereby the application moved by the State under S. 311 of the Code of Criminal P.C. for summoning some witnesses was rejected. 2. The facts briefly stated are that the petitioner had made a report to the police on the basis of which First Information Report Ex. PW 7/A was registered, The allegations of the prosecution are that property known as Garden House Jakhu at Shimla was under the exclusive possession of Sardar Balwant Singh father of the petitioner and respondent No. 1. During his life-time Sardar Balwant Singh leased out the property in favour of the wife of the petitioner who is stated to be in employment at Delhi. The petitioner had taken two rooms along with kitchen, bath room and store for his own residential purpose. The petitioner alleged that on 21-6-1985 when he had gone out of Shimla, he asked Chowkidar Gian Chand to look after the premises. Gian Chand had informed him telegraphically on 25-6-1985 that the respondents Nos. 1, 3 and 4 had forcibly entered into the premises by breaking the lock. Respondent No. 1 also threatened the petitioner on telephone to do way with his life. On these allegations, the police carried out the investigation. After the completion of the investigation, challan was laid before the trial Court against Harpal Singh and his sons Charanjit Singh and Paramjit Singh under Sections 448/454 of the Penal Code. During the trial, the prosecution examined its witnesses and the statements of the respondents accused were also recorded under Section 313 of the Criminal Procedure Code on 31-5-1988. Thereafter the case was listed for recording the evidence of the defence witnesses. It was at this stage that the application was moved by the petitioner through the State for summoning four witnesses, namely, Jagdeep Singh along with the original lease deed, Pratap Chand Dewan, an official concerned of the custodian, Himachal Pradesh along with the record and official concerned of the custodian, Haryana, along with the record, as prosecution witnesses. 3. This prayer was contested by the accused. However, after hearing the parties, the trial judge dismissed the prayer of the prosecution by the impugned order. 3. This prayer was contested by the accused. However, after hearing the parties, the trial judge dismissed the prayer of the prosecution by the impugned order. The relevant portion of that order reads as under : "It need not to be repeated that the case is at its final stage since the statements of the accused persons under Section 313 Cr. P.C. stands already recorded and the case was fixed for DWs when the instant application under consideration was moved by the complainant. Thus, at first, the question that needs to be looked into is to the effect whether the complainant/prosecution can be allowed to cure any lacuna in the prosecution evidence for which the prosecution and the complainant had the opportunity to care at the time of leading evidence ? The answer to the same obviously, is in the negative for the reason the accused persons have already entered into their defence and now the prosecution cannot be allowed to fill in the lacunas on the basis of which the accused can claim benefit of doubt. Otherwise in a case the analogy of the complainant/prosecution as in the instant case is accepted that would virtually amount to reinvestigation of the case and any defect noticed by the prosecution at the fag end of the case would then be invariably cured before the case is to be listed for judgment and in that eventuality I wonder there would be rarest of the rare case in which the accused can claim acquittal on benefit of doubt, which obviously will be against the cardinal principle of criminal jurisprudence." 4. Shri B. K. Sood learned counsel for the petitioner, contends that the persons whose names are mentioned in the application are relevant witnesses for the just decision of the case and the court below by dis-allowing the prayer has acted with material illegality in exercise of the jurisdiction vested in it. The contesting respondents accused are represented by Shri P. N. Lau, Advocate, who despite various opportunities has not put in appearance. 5. The contesting respondents accused are represented by Shri P. N. Lau, Advocate, who despite various opportunities has not put in appearance. 5. Before proceeding to examine the contention of the learned counsel for the petitioner, it is expedient to reproduce Section 313 of the Criminal Procedure Code which reads thus : 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 any such person if his evidence appears to it to be essential to the just decision of the case." 6. This Section 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. 7. The second part which is mandatory imposes an obligation on the Court-(a) to summon and examine, or (b) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case. 8. The law is clearly expounded by the Supreme Court in Jamatraj Kewalji Govani v. State of Maharashtra, AIR 1968 SC 178 : (1968 Cri LJ 231) and Mohanlal Shamji Soni v. Union of India, (1991) 1 Crimes 818 : (1991 Cri LJ 152 l). In Jamatraj Kewalji Govani referred to above, Hidyatullah, J. while speaking for the Bench about the un-fettered discretionary powers of the Court as envisaged in Section 540 of the old Code (Section 31 1 of the new Code) has stated thus : "Section 540 is intended to be wide as the repeated use of the word any throughout its length clearly indicates. The Section 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 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. 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 benefit 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." 9. In Mohanlal Shamji Soni, (1991 Cri LJ 1521 (SC)) supra, S. Ratnavel Pandian, J., while speaking for the bench has observed (paras 9 and 10) : "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 judicially with circumspection 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. 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 withholds any evidence which could be produced and which, if produced, be unfavourable to the party with-holding 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 the 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 satutary provisions of Section 540 of the Code (Section 311 of the new Code) are enacted whereunder any 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 attendence though not summoned as a witness or recall or reexamine any person in attendence 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." 10. In the present case, the lease deed was executed by late Sardar Balwant Singh in favour of his daughter-in-law Smt. Amarjeet Kaur on 4-5-1959 on duly stamped paper in the presence of marginal witnesses, namely, Shri Ajaib Singh and Shri Pratap Chand Dewan. After the execution of the said lease deed Smt. Amarjeet Kaur wife of the petitioner took possession of the entire estate and continues to remain in possession thereof. The yearly rent of the demised premises was Rs. 300/- and Smt. Amarjeet Kaur duly paid the rent to late Sardar Balwant Singh who issued rent receipts thereof. The prosecution had appended photostat copies of the lease deed, letter dated 19-8-1959 written by Sardar Balwant Singh to Smt. Amarjeet Kaur stating therein the execution of the valid lease deed and two receipts in the sum of Rs. 300/- each, duly attested by the Sub-Divisional Magistrate with the police challan. The original record was produced by PW Jagdeep Singh in the Court but the original records could not be kept in the trial court because the documents were required to be produced in the Civil Suit pending in this Court. The documents were placed and marked on record and the same were not exhibited by the trial Court. The prosecution wanted to examine the material witnesses to prove the signatures of Sardar Balwant Singh who died before the dispute between the parties arose. The prosecution wanted to get the documents exhibited which are relevant for the purpose of deciding the case and the evidence of the relevant witnesses is essential in the interest of justice. Photostat copies of the documents i.e. lease deed, two receipts and letter are stated to be in possession of Smt. Amarjeet Kaur and according to the petitioner, Smt. Amarjeet Kaur has strained relations with the petitioner. These documents are duly attested by the Sub Divisional Magistrate, Chandigarh. Pratap Chand Dewan is a marginal witness of the lease deed and the other marginal witness, namely, Ajaib Singh has already died. In order to prove the signature of late Sardar Balwant Singh, an official of the office of custodian, Himachal Pradesh along with file pertaining to the estate which file contains the signature of Sardar Balwant Singh is also essential for the decision of the case. In order to prove the signature of late Sardar Balwant Singh, an official of the office of custodian, Himachal Pradesh along with file pertaining to the estate which file contains the signature of Sardar Balwant Singh is also essential for the decision of the case. The records pertaining to the properties owned by Sardar Balwant Singh in districts Sirsa and Hissar maintained by the custodian, Haryana containing signature of late Sardar Balwant Singh is also relevant for the decision of the case pending before the trial Court. The examination of these witnesses in the case is most essential not only from the point of view of establishment of the prosecution case but also for the substantiation of the defence case. These documents if relied upon by the prosecution ensure to the benefit of both the prosecution and defence. On the facts of this case, the interest of justice demanded that the material witnesses ought to have been examined by the judicial magistrate. It was not shown in what manner the accused were prejudiced by the examination of the witnesses, nor it was shown that how these witnesses would fill up the lacuna. 11. In my considered opinion, the facts and circumstances of the case require examination of Shri Pratap Chand Dewan, mariginal witness of the lease deed, an official concerned of the custodian, Himachal Pradesh, along with the records pertaining to Garden House Jakhu, Shimla and an official concerned of the custodian, Haryana, House No. 64, Sector-9A, Chandigarh along with records pertaining to the lands owned by late Sardar Balwant Singh in village Shamsha Patti, District Sirsa and in village Hajarwan Tehsil Patehbad, District Hissar, as witnesses for a just decision of the case. 12. For the reasons stated above, I hold that the order of the trial court suffers from illegality and as such is quashed. The petition is accordingly allowed. However, I direct the trial Court to afford a fair opportunity to the respondents-accused to cross-examine the witnesses sought to be examined by the prosecution and also to lead rebuttal evidence if the respondents-accused so desire. Petition allowed