Mansha Singh vs State of J & K

The petitioners have been charged under Sections 419. 420, 467. 468. 109 RPC. After hearing the arguments and while preparing the

judgment, the learned Magistrate came to the conclusion that Shri Janak Raj Kotwal on whose instance the case was registered, is required to be

recalled because the same question with regard to the identification of the person who personated before him as Thorn Ram have not been asked

to him. He accordingly by order dated 28041999 directed recall of PW Shri Janak Raj Kotwal, who at the relevant point of time was posted as

SubRegistrar, R.S. Pura. The statement was made by the alleged accused to get the sale deed registered by presonating as Thorn Ram.

The question involved is whether the Magistrate has the power to recall the witness after hearing the argument. It is settled law that the trial court

does not conclude till the judgment is announced.

It is also settled law that court has the power to recall a witness under section 16 of the Evidence Act. The power has however, to be exercised

judicisouly and not to the prejudice of either party. But power under section 540 Cr.P.C. is also very wide and not controlled by stage the trial has

reached. Referring to the scope of this section, their Lordships of the Supreme Court in Jamatraj Vs. State of Maharashtra (AIR 1968 SC 178)

held as follows :

The 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. 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 which provides: "" Section 165: The judge may. in order to discover or to obtain proper

proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of relevant, and may order the production of any

document or thing: and neither, the parties nor their agents shall be entitled to make any objection to any such question or order, nor. without the

leave of the court, to crossexamine any witness upon any answer given in reply to any such question:

These two sections between them confer jurisdiction on the judge to act in aid of justice.

The content of Mr. Bakshi is that the exercise of power in the case is not bonafide because it is a lacuna which the prosecution cannot be

allowed to file after the arguments have been heard. However, a similar argument was rejected by their Lordships in Jamatraj's case (supra)

holding that:

Section 540 is intended to be wide as the repealed use of the word 'any' throughout its length clearly indicates. The section is in two parts. The

first part gives a discreionay 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 reexamine 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 bonafide 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. This was laid down by Tindal. C.J. in words which are oftquoted:

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 eximproviso, which no human ingenuity can foresee, on the part of

defendant in a civil suit, or a prisoner in a criminal case, there seems to me no reason why that matter which so arose eximproviso may not be

answered by contrary evidence on the part of the Crown.

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.

Applying this to the facts of the case, order impugned has been passed only to reach a just decision of the case. Hence, the petition is dismissed.