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Channu Lal and anr. Vs. Rex - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1949All692; 1950CriLJ199
AppellantChannu Lal and anr.
- cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under.....agarwala, j.1. this is an application ia revision against an order of the temporary civil and sessions judge of mainpuri dismissing an appeal against an order of mr. b. p. sabi, magistrate, first class, mainpuri, who reconvicted the applicants under section 422, penal code and] sentenced them both to undergo rigorous imprisonment for four months and also to pay a fine of us. 500 or in default to undergo further; rigorous imprisonment for a period of three months.2. the facts giving rise to this application as found by both the courts below may shortly be stated as follows. the applicants channu lal and mannu lal are the sons of one fatoh chand. they are related to mewa ram and mt. jain kuar and mt. chandan kuar whose names will be mentioned later on in the judgment a3 shown in the.....

Agarwala, J.

1. This is an application ia revision against an order of the Temporary Civil and Sessions Judge of Mainpuri dismissing an appeal against an order of Mr. B. P. Sabi, Magistrate, first class, Mainpuri, who reconvicted the applicants Under Section 422, Penal Code and] sentenced them both to undergo rigorous imprisonment for four months and also to pay a fine of us. 500 or in default to undergo further; rigorous imprisonment for a period of three months.

2. The facts giving rise to this application as found by both the Courts below may shortly be stated as follows. The applicants Channu Lal and Mannu Lal are the sons of one Fatoh Chand. They are related to Mewa Ram and Mt. Jain Kuar and Mt. Chandan Kuar whose names will be mentioned later on in the judgment a3 shown in the following pedigree :



| | |

Jhuman Lal Darbari Lal Mewa Lal

= |

Mt. Chandan Kuar |

_____________ |__________________

| | |

Sewa Bam Hira Lal Fateh Chanel

=Mt. Jain Kuar |


| |

Channa Lai Mannu Lai


All the male members, excepting the applicantB, and Mewa Ram shown in this pedigree died. Jhuman Lai, Hawei Ram and Hira Lai died without leaving any issues.

3. In the year 1936 Ohannu Lai and Mannu Lai, applicants Wore us, filed an application Under Section 4. Encunibt-red Estates Act praying that the debts may be pier off and alleging that they alone formed a joint Hindu family. In due course this application was sent to the Special Judge where Under Section 8, Encumbered Estates Act the applicants filed a written statement showing the debts due from them and the properties owned by them.

4. In the list of properties mentioned by them, a promote of its 8000 executed by one Panna Lai in favour of Fetus Citied Hira Lal, Fateh Chand being the father of the applicants and Hira Lai being the brother of Fateh Chand, was not shown This pronote was daterl and October 1927. On 4th March 1937 a creditor Suia Dayal objected to the list of properties given by the applicants and Btated that they had concealed the pronote of 31st October 1927. That pronote was therefore included in the list of properties belonging to the applicants and published in the gazette unritr 8.10, Encumbered states Act. To this list nobody objected with The remit that on 8th July 1940 a decree under B. U of the Act was passed wherein it is declared that The applicants were possessed of other properties including this pro-note. In due course decrees Under Section 14 of the Act were powered and the case was sent to the Collector for liquidation of the debts along with The list of properties as provided Under Section19, Encumbered Estates Act TbiB liat included the pro-note aforesaid. While The liquidation proceedings were pending, the applicants align with Mesa llam, their grind uncle, filed'a suit on the basis of The aforesaid pronote against Mt. Bhikam Kuar, widow of Ptiana Ltl, us Pijnna Lai appears to have died by this time. This suit was filed on Slat Mnivh 1911. It was for recovery of Rs. 22,727. This suit was, however, filed with a deficit court-fee and time was taken oft and on for making good the deficiency. While The suit wag thus pending, the applicants secretly were attempting to arrive at some compromise with Panna Lai's widow. They succeeded in their attempt and struck a compromise at RSection 13,400. Mt. Bhikam Kuar sold her property to one Ram Dayal Saksena and left with him a sum of ESection 13,400 to be paid to The two applicants before U9 and Mewa Earn and also Mt. Jain Kuar. On 27th August 1941, this sum was actually paid by Ram Dayal Saksena, the vendee, to the aforesaid four persons, including the two applicants. Then on 1st September 1941 the applicants got The suit, which they had filed, dismissed. The applicants took care not to make any mention to the Special Judge or the liquidation officer about any o these proceedings, and thus there was no question of the applicants having taken the permission of the Court to receive payment under the pronote,

5. It appears that Shiva Dayal got scent of these proceedings and so on 6th October 1941 he made an application to the liquidation officer praying that action be taken against the applicants Under Section 422, Penal Code as they had dishonestly and fraudulently prevented the debt due under the pronote, from becoming available to the creditors The liquidation officer issued notice to the present applicants. Meanwhile Mewa Ram, Jain Kuar and Chandan Kuar, taking advantage of the amendment of Section 11, Encumbered Estates Act, made an application before the Special Judge objecting to the pronote being shown as the exclusive property of the applioanta This application was made on 17th December 1911. In this application they alleged that the pronote belonged to the entire joint family which consisted of Mewa Ram, the husbands of Jain Kuar and Cbandan Kuar and the two applicants. They also in the alternative suggested that Mawa Ram alone was entitled to the entire money a3 the loan was advanced out of his separate funds. This claim was admitted and then, after evidence was taken, dismissed by the Special Judge on 3rd May 1943. According to the Special Judge, the property in the pronote solely belonged to the two applicants before us and the story, that it belonged either to Mewa Ram exclusively or that it belonged to Mewa Ram, the two applicants, Jain Kuar and Chandan Kuar jointly, was rejected. There was an appeal against this order to the District Judge and he confirmed the order of the Special Judge on 19th January 1944. The matter then bi-came final between the parties. The civil Court, therefore, finally declared that the pronote wag the exclusive property of the applicants and that Mewa Ram or Jain Kuar or Chandan Kuar had no share or title thereto. It further held that the applicants were not the members of a joint Hind a family with Mewa Ram After the Special Jud e had rejected the claim of Mewa Ram, Jam Kuar and Chandan Kuar, the liquidation officer ordered the applicants to deposit in Court the amount of RSection 13,400 which they had received from Ram Dayal Saksena. Against this order the applicants went up in appeal to the Commissioner The Commissioner dismissed their appeal, but he allowed them time to deposit the amount up to 15th January 1945. The applicants did not deposit the amount and on 11th January 1945 they applied for further time alleging that Mewa Ram had put the money somewhere and had forgotten about it and, therefore, the money could not be traced. The liquidation officer granted three months further time. On 19th April 1945 the applicants again moved the liquidation officer for still further time. In this application they alleged that Mewa Ram had become insane and, therefore, it could not be found out where the money was. The liquidation officer, however, rejected this application and ordered the applicants to show cause within three days why they should not be prO3ecuied under Section 422 Penal Code As no sufficient cause was shown, the liquidation officer ordered that the applicants be prosecuted. He sect a com. plaint to Sub Divisional Magistrate of Mampuri on 27th April 1945. Against this order of the liquidation officer, the applicants appealed to the Comtaiseioner. The Commissioner dismissed their appeal on 6th September 1915

6. The complaint was taken cognizance of by Mr. Asbfaq Husain, the Sub. Divisional Magistrates of Mainpuri He, however, did not hold The trial him self but transferred the case to be tried by a Bench of first class Magistrates. The case was thereafter transferred to various Courts and ultimately came back to the Court of the Sub-Divisional Magistrate now presided Over by Mr. B, P. Sahi, Mr. Asbfao, Hua in having been trans erred in the meantime The case was ultimately tried by Mr. B. P. fiahi who found the applicants guilty under s 4-22, Penal Code, and stntenced them as stated above. The applicants appealed to the Sessions Judge and the appeal was alao diraiisstd They have now come up in revision to this Court.

7. Four points have been urged on their behalf by learned Counsel appearing for thorn. It is urged in The first place that the pronote in dispute did not form part of The assets of the applicants and was not necessary to be s hown in the Encumbered Estntis Act proceedings, This contention is absolutely without foundation. Section 8, Encumbered Estates Act clearly lays down that the landlord applicant shall file a written statement giving the nature and extent of the landlord's proprietary Eights in land and the nature and extent of the landlord's property which u liable to attachment and sale Under Section 60, Civil P.C., 1908, exclusive of his proprietary rights in land,' The pronote in dispute was a debt due to the applicants and was liable to be attached and sold in execution of a decree Under Section 60, Civil P.C. It was, therefore, necessary for the applicants to show it in their written statement, It was a proparty which was to be made available to the liquidation officer in order that he might liquidate the applicants' debt.

8. The next contention is that the complaint in this case could not be filed by the liquidation officer as a Court because the offence Under Section 422, Penal Code, does not fall within the purview of Section 476 read with Section 195, Criminal P.C. The argument, therefore, is that since the Court, namely, The liquidation officer, had no power to make a complaint, the complaint web invalid and the Magistrate was incompetent to take cognizance thereunder and so the whole trial is accordingly vitiated,

9. It is true that an offence Under Section 422, Penal Code is not included in the offence mentioned in Section 195 (1)(b) or (c), Criminal P.O., and therefore the liquidation officer, acting as a civil or revenue Court, could not under The provisions of 8. 476, Criminal P. O,, make a complaint for an offence which fell Under Section 422, Penal Code This circumstance, however, in our opinion, does not conclude the matter. Under Section 190, Criminal P.C. a Magistrate is competent to take cocoanut of any offence,

(a) up in retrieving a complaint of facts which constitute such offence

(b) up hi a report in writing ' of such facts made by anj police officer

(c) upon information received from any person other from a police officer, or upon his own knowledge or suspicion that such offence has been committed.

Now a complaint is defied in Section 4 (1)(h), Criminal P.C. as manning -

the allegation mina orally or in writing to a Magistrate with a view to his taking action under the Code, that sums person, whether known or unknown, bas commuted an offence, out it does not include the report of police officer.

10. Since the order of the liquidation officer in The present case communicated to the Sub-Divisional Magistrate was made with a view to an notion being taken under this Code and had and out the fat which constituted the oil it cannot but be held that it was a complaint

11. In King Emperor v. Kushalpal Singh : AIR1931All443 , Mukerji J. delivering the judgment of The Full Bunch, observed that a Court could file a complaint only under the provisions of Section 416, Criminal P.C. and that it had no inherent jurisdiction to file a complaint other- wise than in accordance with the provisions of that section. This observation is binding on us, although it may be stated that the Question for decision in the Fall Bench was whether Section 195 (1)(e) was applicable so as to render a complaint of a Court necessary before a prosecution for abetment of forgery could be lodged in respect of High Court Rs. 4 to 7 or any of them. In that case the Exs. 4 to 7 were alleged to have been forged by a party to a proceeding long before the proceeding had started. The Full Bench held that Clause (c) to Section 195 applied only to cases where an offence had been committed by a party as such to a proceeding in any Court in respect of a document which had been produced or given in evidence in such proceeding and in. this view of the law the documents did not fall within the purview of Section 195 (1)(c). Mukerji J. expressed his view about Section 476, Criminal P.C. as quoted by us above in answer to an argument that Section 476 was not exhaustive. It is apparent that this observation was by way of an obiter dictum and was not strictly necessary for answering the question that was referred to the Full Bench. However, that may be, as the observation is contained in a Full Bench judgment we are prepared to consider ourselves bound by it,

12. Assuming, therefore, that a Court has an jurisdiction to make a complaint otherwise than as is provided in Section 476, Criminal P.C. the question is whether the liquidation officer, who made the complaint in the present case, was acting as Court. It ia at least arguable that under the Encumbered Estates Act a liquidation officer is not a Court. We, however, do not deside this question as, in our opinion, whether he is a Court or not a Court he, in is capacity as a public officer, was not prevented by my rule of law from making a complaint if he considered that a party in a proceeding pending before him had committed an offence. As a public officer it would be his duty to bring it to the notice of the Magistrate having jurisdiction to taka cognizance of the offence. With exception of certain specified cases in which the law requires a complaint to be made by particular individuals, any person may lodge a complaint about an offence having been committed by a person or may give information to a Magistrate competent to try the same, The liquidation officer, as we have already observed, did not commit any breach of any rule in lodging the complaint in respect of the present applicants if he thought that they had prima facie committed an offence, The fact that he could not have taken any action Under Section 476. Criminal P.C., in his capacity as a ' Court' does not, in our opinion, debar him from taking any action in his capacity as a public officer or authority. The complaint, therefore, in the present case, Gould be validly taken cognizance of by the Magistrate concerned,

13. If it be conceded for the sake of argument that the liquidation officer acted merely as a Court and not as a public officer and that, therefore, the complaint made by him wa3 an invalid complaint, we would still hold, in that case, that the Magistrate had jurisdiction to act under Clause (c) of Section 190 (1), Criminal P.C. He could have treated this invalid complaint as as 'information.' In its ordinary sense 'information' is a wider term and includes any communication relating to the commission of an offence. A complaint is a particular kind of information and is more or less formally made with the definite object that the person to whom the complaint is made will take action under the Criminal Procedure Code. 'Information' is the genus of which a 'complaint' is a specie. In Section 190 (1)(c), however, the word 'information' must be construed as referring to information which is not a valid complaint falling under Clause (a) of that section, If a complaint is not a valid complaint, it does not cease to be an information and, therefore, can be treated as such under Clause (c) of Section, 190 (1) and it is open to the Magistrate to whom an invalid complaint is lodged to treat it as an information under Section 190 (1)(o), Criminal P.C., subject, of course, to the limitations imposed by Section 191, Criminal P.C. in this behalf.

14. If the complaint lodged by the liquidation officer can be treated as a valid complaint by a public officer, as we think it can be, it was not necessary that the complainant should have been examined in person. Proviso (aa) to Section 200, Criminal P.C. makes it unnecessary for the Magistrate, when a complaint has been filed by a public servant acting or purporting to act in the discharge of his official duties, to examine such a public servant on oath, If, however, the complaint in the present case is to be treated as a complaint made not by a public servant but by a Court and therefore, invalid, then, in that case, as we have already observed, it is an information within the meaning of Clause (c) of Section 190 (1), Criminal P.C. In such a case Under Section 191, Criminal P.C. the Magistrate, receiving the information and taking cognizance of an offence on receipt of such information, should not try the case himself without informing the accused that he i3 entitled to have the case tried by another Court. In the present case, however, as we have already noted, the Magis. trate, who took cognizance of the case, did not try the case himself, It was tried by another Magistrate. There is, therefore, no defect in the procedure adopted by the trial Court.

15. The view we have expressed above ia supported by a number of authorities of this Court,

16. In the case of Bilas Singh v. King. Emperor : AIR1925All737 , an election Commissioner had sent a complaint purporting to act as a Court Under Section 476, Criminal P, C,, and the validity of the com-plaint was questioned. This Court held that, although the complaint could not have been validly made Under Section 476, Criminal P.C. nevertheless the Magistrate, who received the complaint, had jurisdiction to proceed Under Section 190 (1)(a) or Section 190 (1)(c), Criminal P.C.

17. In Tara Singh v. Emperor : AIR1938All449 , Allsop J, held that, although the complaint in that case could not have been filed by the Civil Judge, as the offence wag not covered by the provisions of 8. 476, Criminal P.C. yet the Sub-Divisional Magistrate, who took cognizance of the offence, could do so under the wide ambit of S, 190, Criminal P.C. his Lordship further held that such a complaint could be treated as a complaint by a public officer and, as such, it was not necessary for the Magistrate to examine him on oath.

18. In the case of liar Prasad v. Emperor, 1947 A. D. J. 1 : A. I. R. (34) 1947 ALL. 139 ', 48 Cr.L.J. 282, Yorke J. had a case in which a Commissioner, sitting as an election Judge under the Municipalities Act, had made a complaint. The election Judge was not a Court within the meaning of Sections 476 and 195, Criminal P.C. It was held that a complaint could nevertheless be entertained by the Magistrate under the provisions of Section 190 (1)(a), Criminal P.C.

'[19] In Emperor v. Basool Ahmad, 1947 A. L. J. 98 : A.I.R. (34) 1947 ALL. 173 : 48 Cr.L.J. 706, a similar view was expressed.

20. In the case of Ambika Sahi v. King-Emperor : AIR1948All80 , although a complaint made by a Small Cause Court Judge was held to be defective, as it was found that the Judge had no jurisdiction to make it, yet it was held that the complaint could be treated as information within the meaning of 3.190 (1)(c), Criminal P.C.

21. Learned Counsel appearing for the applicants has drawn attention to the following cases: Saldeo v. Emperor : AIR1927All101 , Lallu Singh v. Emperor 44 Cr. L, J. 492 : A. I.R. (30) ISIS Oudh 226, Sar-faraz Khan v. Emperor A.I.R. 331: 14 Cr.L.J. 218, Jhunna Lai v. King EmperorA.I.R. 31 1917 pat. 611: 18 Cr.L.J. 890, Mangu Koari v. King-Emperor A. I.R. (7) 1920 Pat. 670 : 20 Cr.L.J. 481 and In re Marudai Filial : AIR1945Mad458 .

22. In Saldeo v. Emperor : AIR1927All101 , Banerji J. had a casein which, previous to the making of a written complaint, the Magistrate happened to be in the village where the complainant resided and the complainant orally related the story of the offence to him. Whereupon the Magistrate inspected the locality, bat thereafter a formal written complaint was lodged. It was held that the case was taken cognizance of only after the for-mal complaint had been filed, and the more fact that previous to the making of the complaint the Magistrate had inspected the locality, would not bring the ease within the purview of Clause (c) of Section 190 (t), Criminal P.C. There is nothing in this case which in any way, conflicts with our own view.

23. In Lallu Singh v. Emperor 44 Cr.L.J. 49a : A.I.R. (30) 1943 oudh 226, Ghularn Hasan, J, held that Clause (c) of Section 190 (1), Criminal P.C. applied to cases where the party concerned was not prepared to lodge a formal complaint and prosecute the case, and the Magistrate chose to take cognizance of the offence upon the basis of the information received by him either directly or through persons other than the complainant or the aggrieved party. What happened in that case was that on receipt of a letter from the complainant informing the Magistrate of the offence, the Magistrate forwarded the letter to the police for investigation Mid, as a result of the investigation, the accused were put up for trial and convicted. It was held that in such a case the Magistrate must be deemed to have taken cognizance of the offence on the police report Under Section 190 (1)(b), Criminal P.C. and that the trial was not vitiated.

24. We do not think that the ruling reported in Sarfaraz Khan v. King Emperor 11 A. L. J. 331 : 14 Cr.L.J. 218 helps the applicants in any way. The same remarks apply to Jhunna Lai v. King Emperor AIR (4) 1917 pat. 611 : 18 Cr.L.J. 690 and Mangu Koeri v. King-Emperor A. 1. B. (7) 1920 Pat. 670 : 20 Cr.L.J. 481.

25. In re Marudai Pillai : AIR1945Mad458 , the District Medical Officer, on receiving a man with injuries on his person, suspected that the injuries bad been caused to him by the police, As he was of the opinion that the injuries were serious ones likely to result in death, he sent up the papers to the District Magistrate stating that certain allegations had been made against the police and that it was desirable that there should be an inquiry and steps taken to see that the culprits were punished. The District Magistrate on receipt of the papers sent them on to a Sub-Divisional Magistrate to make inquiries and report. The Sub-Divisional Magistrate made an inquiry and then lodged a complaint with another Sub Divisional Magistrate. On that complaint notices were issued and the accused were tried Relying upon the observations of Mukerji J. in the Full Bench decision of this Court in Emperor v. Kushalpal Singh : AIR1931All443 S. B., Kuppuawami Ayyar J, held that since the complaint was not oovered by the provisions of Section 476, Criminal P.C. it was a bad complaint He further observed:

It is urged, however, that even though the Sub-Divisional Magistrate had no jurisdictional to tile a complaint, Rule such a complaint was received, the (second) Sub-Divisional Magistrate on receiving it could act Under Section 190 (o) and take cognizance of the case and the action of the (second) Sub-Divisional Magistrate must be considered to have been taken under that section. If that be so, then Under Section 191, it ia open to the accused to object to the case being tried by that Magistrate and the for the case being tried by another Magistrate The stationary have been deprived of the exercise of Such a right by ream n of the failure on the part of the Sub-Divisional Magistrate to inform the petitioners about it and were them whether they wanted the case to be triad by another Magistrate,' Thus it appears that the learned Judge accepted the proposition that the matter might fall under the purview of Section 190 (1)(c), though not under the purview of Section 190 U)(a). This case also does not support the contention of learned Counsel.

26. It is next urged that the learned Magistrate acted illegally in examining certain witnesses after the arguments were over and that, therefore, the trial was vitiated.

27. What happened in this ease appears to be this. After the evidence for the prosecution and the defence was over on 28th January 1947, the learned Magistrate fixed 80th January 197 for The hearing of arguments. While the arguments were being heard and not concluded, the learned Magistrate thought that Hem Chandra Misra, one of the prosecution witnesses, already examined, should be recalled. He, therefore, ordered that Hem Chandra Misra be recalled and fixed 31at January 1947 for his examination. On 31st January 1947 Hetn Chandra Misra was further examined and arguments were again heard. 7th February 1947 was then fixed for judgment. On this date the learned Magistrate again considered that two other witness, Gajadhar Singh and Siya Ram, should also be recalled. He, therefore, called The counsel and informed them that he would recalled Gajadhar Singh and Siya Em. These two persons were further examined. We are told by learned Counsel appearing for the applicants that the learned Magistrate wanted to examine the accused Under Section 342, Criminal P. C once again. The accused desired that they would file a written statement. This was allowed. The accused filed a written statement on 8th February 1917 in which they tried to explain the circumstances appearing in the evidence against them. Thereafter arguments were heard and the learned Magistrate Fixed 12th February 1947 for delivery of judgment on which date be delivered the judgment convicting the accused.

28. Section B40, Criminal P. C is couched in very wide language and runa as follows :

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 prison already examined, and the court shall turndown and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case.

Under this section the Court is empowered ''at any stage of any enquiry or trial' to summon or examine or re-examine any witness.

29. Now the contention of the leaned counsel is that the trial in this case had finished as soon as the defocus evidence was closed and the arguments were heard. According to him when on 30th January 1917 the learned Magistrate had heard the arguments, The trial had been closed. Now as a. matter of fact the contention of the learned Counsel is based upon as inaccurate appreciation of what happened on 30th January 1947. As we have already said, the argument were not closed on 30th January. It was during the arguments that the learned Magistrate thought that ha should re-examine Hum Chandra Misra. That, however, does not dispose of the matter. The arguments had concluded on 31st January and 7th February had been fixed for judgment. It can, therefore, be urged on b halt of the applicants that at least after 31st January 1917 the arguments had been concluded and The trial was, therefore at an end. The contention is based upon the distinction between a trial and a judgment According to learned Counsel a judgment is' no part of a trial In this connection be refers to Sections 866 and 497 (4), Criminal P.C. Now these two sec-tions, no doubts lend colour to the argument advanced by learned Counsel

30. In bakshi Raw v. Emperor : AIR1935All102 , it was held test in The present Criminal Procedure Code a trial did not include a judgment and that the trial concluded before the judgment was pronounced. As pointed out by Iqoal Ahmud (18 he then was) in that case, although in the Code of Criminal Procedure of 1872 the word'trial1 was defined as meaning

the proceedings taken In Court after a charge bas been drawn up and includes the punishments of the offender

that definition was omitted from the present

Criminal Procedure Code. The word 'trial' is therefore not now defined arid, as appears from the perusal of 89. 866 and 497 U), the judgment is not part of the trial.

31. The mere fact, however, that judgment ia not included in the word 'trial' does not mean that the trial finally concludes once the arguments are heard and that no evidence (sic. witness ?) can be examined after that point of time, even though the judgment has not been pronounced. The Code does not lay down the point of time when a trial is to be deemed to be concluded, To our mind n, trial continues till the judgment is delivered. Even though at one stage the evidence of the parties is concluded and arguments have been heard, the Court before delivering judgment ia entitled in the interest of justice to examine of its own motion any witness, provided, of course, the interests of the accused are not prejudiced thereby. Section 540, in our opinion, empowers a Court to take such evidence. If the Court decides to take such evidence, it would be proper for the Court to re-examine the accused with reference to the new evidence recorded and to give an opportunity to the accused to give such further evidence in defence as he may be advised to do. In the present case the learned Magistrate was careful enough to give such opportunity to the accused. We are satisfied that the action of the Magistrate was justified in law and did not, in any way, prejudice the accused.

32. In this connection reference may be made to Bam Chandra Prasad v. Emperor A. I. R (24) 1937 Pat. 246 38 Cr.L.J. 657, Man-gat Bai v. Emperor A. I. R (le) 1928 Lah. 647 : 39 Cr. Ii, J. 740, Qur Baksh Tewari v. Em. peror A I. B. (5) 1918 oudh 142 : 19 Cr.L.J. 630 all of which support our view. The same view was expressed in an old cage of our Court: Empress of India v. Baloo Sahai, 3 ALL. 2113, That was, however, a case under the old Code in which trial wa3 defined to include a judgment,

33. Learned Counsel for the applicants has strongly relied upon the case of Natabar Ghose v. Adya Nath Biswas A. I. R (10) 1923 Cal. 390 : 24 Cr.L.J. 967 In this case C. C. Ghose and Chotzner, JJ. were of opinion that after both sides had dosed their respective cases and after-arguments had been hotrod and a date had been fixed for delivery of judgment, it was not proper for the Court to examine two witnesses, who were named by the prosecution Under Section 540, Criminal P.C. It may be observed that in that case, it does not appear that any opportunity was given to the accused to explain the fresh evidence that was recorded or to give further evidence for defense as he liked. The learned Judges observed:

Although the terms of S, 540 are very wide, the wider the power, the more cautious should be the exercise of discretion on The part of the Magistrate.

We do not think that it was the intention of the learned Judges in that case to lay down, as a hard and fast rule, that in no circumstance, can a Court examine witnesses Under Section 540, Criminal P.C. once the defence evidence had been closed and arguments had been heard. In our opinion, therefore, there is no force in this contention of the learned Counsel.

34. Learned Counsel has further urged that in any case the sentence was too severe and that a sentence of imprisonment was not called for. In our opinion, the sentence imposed by the Court below is not severe and we see no reason to interfere.

35. We dismiss this revision application.

36. The applicants are on bail. They must surrender to their bail and serve out the rest of the sentence.

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