1. This is a reference under section 483 of the code of Criminal Procedure, by the Sessions Judge, Chitradurga, recommended to set aside the order passed by the Special First Class Magistrate, Davanagere, in Criminal Case No. 2892 of 1967.
2. The facts which have given rise to this reference are these: The Sub-Inspector of Police Davanagere filed a charge sheet on 25-5-1966 against one A. G. Ramaswamy (respondent in the reference) in the Court of the Special First Class Magistrate, Davanagere, alleging that he was in possession of some brandy bottles without a valid permit and thereby committed an offence punishable under Section 12(a) read with section 59(b) of the Mysore Prohibition Act. For one reason or the other, the respondent did not appear before the Court. Therefore, the learned Magistrate stopped the proceedings under section 249 Cr.P.C. on 14-6-66.
After nearly 13 months the prosecution filed an application on 28-7-1967, requesting the Court to revive the proceedings, stating that the respondent had been traced. The learned Magistrate revived the case and took the case on his file giving C. C. No. 2897/67. On that day the prosecution filed an application along with three references, requesting the Court to include the names of three witnesses mentioned in the said application and to issue summonses to them. the Magistrate posted the case to 31-7-67 for filing the objection by the respondent, if any, to the said application. On that day, no objections were filed. Thereafter the learned Magistrate passed an order dated 2-8-1967, rejecting the application filed by the prosecution to examine additional witnesses. The learned Sessions Judge has made this reference to set aside the said order.
3. It could be seen from the order of the learned Magistrate that no provision of law was mentioned in the application under which the prosecution sought to examine three additional witnesses. However, the learned Magistrate, took the application to be one under Section 540 Cr.P.C. He rejected the application mainly on the ground that no material was placed before him in the application that the evidence of the three witnesses was essential for the just decision of the case in order to exercise the discretion given to him under section 540 Cr.P.C. In disposing of the application he stated thus:
'Even the reasons are not forthcoming to show that the evidence of these witnesses is essential to the just decision of the case. In what manner the evidence is necessary and why they kept back all these documents, are not forthcoming. Therefore I cannot exercise my power under Section 540 Cr.P.C.'
The first part of Section 540 Cr.P.C. gives purely discretionary authority to the Criminal Court and enables it at any stage of an enquiry, trial or proceeding under the code to summon any one as witness or to examine any person present in Court or to recall and re-examine any person whose evidence has already been recorded. The second part is mandatory and compels the Court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case. When the charge-sheet was filed against the respondent the witnesses now sought to be examined were not mentioned. No reasons are given in the application why these three witnesses should be examined in the case. Nor it is stated in the application why the evidence of these witnesses is necessary.
4. The prosecution were in possession of all the materials on which they sought to establish the charges against the respondent, at the time the charge-sheet was filed. If the prosecution withheld some materials and then at a later stage wanted to produce them even without stating the necessity for such materials, the Court cannot exercise its power under Section 540 Cr. P.C. If the Court exercises the powers on such an application, it will only amount to filling up a gap in the prosecution case. As the application filed by the prosecution was bald and did not disclose that the evidence sought to be proved was for the just decision of the case, the learned Magistrate was justified in rejecting that application.
5. In these circumstances, the reference cannot be accepted and the same is rejected.
6. Reference rejected.