R.K. Das, J.
1. This is a reference under Section 438, Cr. P. Code, made by the Sessions Judge, Bolangir Kalahandi, recommending to this Court to set aside the order of Sri. A.P. Shukla, Magistrate, 1st Class Titlagarh, dated 11-6-64, wherein he directed the Nazul Amin to inspect the disputed property and to report to the Court on which of the plots the accused persons had constructed the house in question.
2. The circumstances under which this Reference arises may be stated as follows:
Radhamohan Padhi as complainant, filed a case against Kanhu Charan Saraf and some others under Section 447, I.P.C. in the Court of the Sub-divisional Magistrate, Titlagarh, on the allegation that they had committed trespass into Nazul plots Nos. 351/D and 361/D in Khata No. 12 in town Titlagarh and erected some house thereon in spite of the protest of the complainant. After cognizance was taken, the accused, persons were duly summoned and both sides examined their witnesses. The prosecution also examined one Nazul Amin as one of its witnesses. On 23-1-64 the defence made a prayer for local inspection of the spot by the Magistrate. But the Magistrate did not consider it necessary to make any local inspection and posted the case to 11-5-1964 for argument. The argument was concluded on 11-6-64, but instead of posting the case for judgment, the learned Magistrate directed issue of summons to some other Nazul Amin, than the one who was examined by the prosecution, and to submit a report as to on which portion of the disputed plots the accused persons had constructed the house. It was the contention of the accused persons that it was not open to the Magistrate to issue summons to another Nazul Amin at that stage and to examine him as a witness, and after the arguments were closed, the Magistrate should have fixed a date only for judgment. The learned Sessions Judge was of the view that the steps taken by the learned Magistrate would fill up the gap of the prosecution case and would amount to collecting of the evidence which the Court is not authorised to do. Accordingly the learned Sessions Judge has made this, reference to this Court to set aside the order dated 11-6-1964 passed by the Magistrate directing a Nazul Amin to make local inspection of the disputed property.
3. The main contention raised in support of the Reference, by Mr. Kar is that--it was not open to the Magistrate to summon the witnesses at so late a stage when the arguments were over, even in exercise of the powers under Section 540, Cr. P.C. Mr. Rao, on the other hand contended that it was absolutely within the powers of the Court to summon a witness under Section 540 before the judgment was delivered. His contention is that the trial within the meaning of Section 540 continues till the judgment in the case is delivered by the Court, To appreciate the arguments on both sides, it is necessary to quote Section 540 Cr. P.C. here. It runs thus: --
'Any Court may, at any stage of any enquiry, 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 essential to the just decision of the case.'
Thus Section 540 is divided into two parts. The discretion given in first part is rather wide enough and has necessarily to be exercised with good deal of caution. But so far as the second part is concerned there is no scope for any discretion. It is the duty of the Court to examine fresh evidence and the only condition necessary to apply the, second part is that the Court must be satisfied that such evidence is essential to the just decision of the case Whether such evidence is essential or not, depends upon the facts of each case and is a matter to be decided by the Court. A controversy arose as to the stage upto which the Court can exercise its jurisdiction under Section 540. Cr. P.C. There are a large number of authorities to show that the word 'trial' in Section 540 continues until the judgment in a case is delivered; (see In re, P.C. Perumal, AIR 1924 Mad 587 (2); Ramchandra Prasad v. Emperor, AIR, 1937 Pat 346: and Mahomed Akbar v. Emperor, AIR 1948 Nag 209). Once it is held that the trial continues upto the stage of delivery of the judgment, then obviously under the provisions of Section 540, the Court has authority to examine witnesses even though the evidence of both sides has been closed and the arguments concluded. Whether it is the discretionary jurisdiction under the first part or the mandatory duty of the Court under the 2nd part of the section the obvious object of the section is to enable the Court to arrive at the truth by calling for the production of what he considers to be relevant evidence. It is not the object of the section either to help the prosecution or the defence by filling the gaps in their evidence. Now I would refer to a few of the decisions of the different High Courts in India cited at the Bar.
4. In a case reported in AIR 1933 Pat. 246 after close of the defence evidence to be taken under Section 540, it was held that Section 540 is expressed in the widest possible terms and the intention is not to limit the discretion of the trying Court in any way. At the same time the Courts ought to remember that the purpose of Section 540 is not to enable one party or the other to fill up the gaps in his case and to improve it by new matter at a late stage, but to enable the Court to act in the interest of justice when it considers such action is necessary. We may recollect that in the present case, it was the case of the prosecution that the accused persons encroached the southern portion of the disputed laud and constructed some shed thereon. In support of the prosecution case one Nazul Amin was examined. The Court, obviously with a view to do justice, thought it necessary to examine another Nazul Amin to know if in fact there was such a construction as alleged by the prosecution, and to test the evidence of the prosecution in this behalf. In my opinion, the evidence of another Nazul Amin may be more helpful to the defence than to the prosecution. If such a witness would depose in Court he would also be available for cross-examination by either party as is usually done in the case of Court witnesses, and that would not in any way prejudice the accused in their trial.
5. In a case reported in AIR 1924 Mad 587, (2), it was held that even after both parties have closed their cases, the Court may summon any person as witness, if his evidence appears to it, essential to the just decision of the case.
6. The Lahore High Court in a case reported in AIR 1928 Lah. 647, Mangat Rai v. Emperor, took the view that where the defence was closed and arguments were heard and if the Magistrate felt that some points had been left obscure and in order to elucidate them it was necessary to recall certain witnesses and to examine a new witness, there was no illegality to such a procedure being adopted.
7. The Nagpur High Court in a case? reported in AIR 1948 Nag. 209 held that the Magistrate was legally entitled to act under Section 540 and the High Court would not ordinarily interfere with the exercise of his jurisdiction under the said section.
8. In a case reported in AIR 1918 Oudh142, Guru Buksh Tewari v. Emperor, after theevidence of the defence was closed the Magistrate examined some witnesses for theprosecution giving at the same time an opportunity to the accused to cross-examine them.It was held that the Magistrate had correctlyexercised his jurisdiction under Section 540, Cr. P. C.Of course in all such cases, the question whether,the accused would be prejudicially, affected ornot should always be borne in mind by theCourt.
9. In view of the aforesaid position of law, I do not think the learned Magistrate was wrong in exercising his jurisdiction under Section 540 by giving a direction to summon another Nazul Amin in this case. If the Magistrate thinks that such a witness is necessary for just decision of the case, he may do so by giving opportunity to both sides to cross-examine the witness and if necessary to further examine the accused under Section 342, Cr. P. C.
10. In the result, the Reference is rejected. The learned Magistrate will now proceed with, the case.