K.P. Mohapatra, J.
1. This revision is directed against the order passed by the learned Sessions Judge, Balasore, affirming the conviction of the petitioners under Section 342, I. P. C. and sentencing each of them to pay a fine of Rs. 100/- in default, to undergo R. I. for two weeks each.
2. The prosecution case in nutshell is that there was theft of a bullock belonging to petitioner Mayadhar In order to locate the culprit he took the help of black migician (patia bula). The black magician identified Basu Biswal as the thief. On 9.9.1973 at about 4 p.m. Mayadhar along with the petitioners and others (since acquitted) assaulted Basu Biswal to extract his confession. Basu Biswal confessed that with the help of Ranka Jena and Hadibindhu Jena, he had committed theft of the bullock. Thereafter, the petitioners and others called Ranka Jena and Hadibandhu Jena to Anandabazar M. E. School at night and assaulted them. In the following morning, the wives of Ranka Jena and Hadibandhu Jena were called to the said school and were assaulted. During night, they confined Ranka Jena, Hadibandhu Jena and one Sidha Jena inside the said M. E. School and did not allow them to go to their respective houses. In the following morning (11. 9. 1973 P. W. 3 Baishnaba Jena reported the incident at Dhamnagar Police station at about 1 p. m. by lodging F. I. R. (Ext- 1). The Investigating Officer (C. W. 1) arrived at the place of occurrence along with his staff and rescued the persons from wrongful confinement. After close of investigation, he submitted charge-sheet against the petitioners and others (since acquitted) for offences under Sections. 147, 323 and 342, I.P.C.
3 The petitioners denied the charges brought against them. The learned Judicial Magistrate convicted the petitioners under Sections. 323 and 342 read with Section 34, I. P. C. and sentenced each of them to undergo R. I. for two months on each court. He acquitted ten persons who stood charged alongwith the petitioners. The petitioners appealed before the Sessions Judge, Balasore, who by the impugned judgment acquitted the petitioners of the charge under Section 323 but affirmed their conviction for the offence under Section 342 I, P. C. and instead of sentencing them to imprisonment, sentenced each of them to pay fines.
4. Learned counsel appearing for the petitioners raised the following contentions :
1. There was delay in lodging the F. I. R. (Ext. 1)
2. The trial Court committed a gross illegality by examining the Investigating Officer as a Court witness after long delay in order to fill up the lacuna in the prosecution case.
3. The prosecution evidence having been disbelieved so far as the offence under Section 323 was concerned, it should have been equally disbelieved for the offence under Section 342, I. P. C.
5. It will appear from the prosecution evidence, as well as from the impugned judgment, that the illegal acts of assault and the confinement started at about 4 p. on. of 9. 9. 1973 and continued upto 11. 9. 1973. As a matter of fact, the Investigating Officer (C. W. 1) arrived at the place of occurrence and rescued the persons who were wrongfully confined inside Anandabazar M. E. School. The F. I. R. was lodged at about 1 p. m. on 11. 9. 1973. From these facts, it cannot be concluded that there was delay in lodging the F. I. R. (Ext. 1) and so the prosecution case should be viewed with suspicion. The contention has no substance.
6. The records of the trial Court reveal that the last prosecution witness (P, W. 16) was examined on 17. 8. 1979. The accused persons were examined under Section 313 Criminal Procedure Cole (hereinafter referred to as the 'Code') on 19. 1. 1980. D. W. 1 was examined on 28. 1. 1980 and the defence was closed. The case was posted to 4. 2. 1980 and then adjourned to 18. 2. 1930 for arguments. On 18. 2. 1980, the prosecution prayed for summoning the Investigating Officer for being examined as a witness as he had not earlier appeared in Court to give evidence. On 19. 2. 1980, the learned Judicial Magistrate passed an order summoning the Investigating Officer to give evidence in Court in the interest of justice. The Investigating Officer (C. W. 1) gave evidence on 27. 2. 1980. After his evidence, the accused persons were again examined under Section 313 of the Code on 23. 2. 1930, whereafter, in due course, arguments were heard and the judgment was delivered.
7. According to the learned counsel for the petitioners, the Investigating Officer was examined by the Court to fill up the lacuna in the prosecution case. This contention is incorrect. It will appear from the orders dated 18. 2. 1980 and 19. 2. 1930 passed by the learned judicial Magistrate that he did not suo motu take initiative for summoning the Investigating Officer to give evidence. The Assistant Public Prosecutor in charge of the case, prayed for summoning the Investigating-- Officer as a witness. The investigating Officer was a witness for the prosecution. For some reason or other, he did not appear in Court in due time. The G R. Case was of the year 1973: The trial Court., therefore did not wait for him and proceeded with the case till the defence was closed, But when the prosecution prayed to summon the Investigating Officer to give evidence in Court, the learned Judicial Magistrate, in exercise of powers under Section 311 of the Code summoned him. Section 311 of the Code corresponding to Section 540 of the old Code confers discretion on any Court to summon any person as a witness, to examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; at any stage of any enquiry, trial or, other proceeding, In this connection, it is necessary to notice a decision reported in A. I. R. 1968 S. C 178, Jamatraj Kigali Govani v. State of Maharashtra, Hidayatullah, J. (as he then was) spoke for the Court and said that Section 540 (corresponding to Section 311 of the new Code) gives 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 for the Court to act as the exigencies, of justice require. It is intended to be wide as the repeated use of the word 'any' through out its length clearly indicates. The section is in two parts. The first pert 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. 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 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. Learned counsel for the petitioners relied upon a decision reported in 1968 C. L. T. 603, Lokanath Behera v. Golak Behari Sahu. In this decision, long after closer of its case, the prosecution wanted to produce some documents and approached the trial Court to accept the some in exercise of its discretion conferred under Section 540 of the old Code. The trial Court however, rejected the prayer. In revision it was held that the powers of a Court under Section 540 of the old Code (corresponding to 311 of the Code) were very wide. But this very width of the power given to the Magistrate requires that he should use the same with very great caution. This power is meant to be exercised where the Court feels that some evidence is necessary to arrive at a just decision in the case, and where the Court so feels it is for the Court to summon and examine the witnesses. This power given to the Court is not meant to be exercised to enable one party or the other to fill up gaps in the case and to improve it by a new matter at a late stage and much less is this power meant to be exercised at the bidding of any of the parties, In this decision which was rendered later than the decision reported in A.I. R. 1968 S. C., 178, Jamatraj Kewalli Govani v. State of Maharashtra, there was no disagreement on the focal point, namely, the discretionary power of the Court to be exercised for just decision of the case. The case was however decided against the prosecution on its own peculiar facts and does not help the petitioners.
8. The learned Judicial Magistrate, in this case after hearing both parties, arrived at the conclusion that interest of justice demanded that the Investigating Officer should be examined as a witness. Examination of the Investigating Officer in a criminal case is most essential not only from the point of view of establishment of the prosecution case, but also for substantiation of the defence case. It is common knowledge that many criminal case and in acquittal of the accused persons on the basis of material contradictions and omissions, as well as, other factors brought through the evidence of the Investigating Officers. Therefore, examination of an Investigating Officer in a criminal case ensures to the benefit of both the prosecution and the defence in a crimical case. Against the order passed by the learned judicial Magistrate on 19. 2. 1980 directing that summons should be issued to the Investigating Officer, the revisional Court was not approached by the petitioners. Therefore it is reasonable to assume that the order was in the interest of justice, accepted by both parties and was passed for just decision of the case. The impugned order of the learned Sessions Judge will show that this point was also not raised before him. It is not shown in what manner the petitioners were prejudiced and how the Investigating Officer was examined to fill up the gaps in the prosecution case, On the other hand, it a pars that after examination of the Investigating Officer as C. W. I. the learned Judicial Magistrate was fair enough to give opportunity to the petitioners to explain further in recording their statements under Section 313 of the Code. They also did not like to adduce further defence evidence as would appear from the order passed on 28. 2. 1980. In view of these facts and circumstances, the contention of the learned counsel for the petitioners to the effect that the learned Judicial Magistrate wrongly exercised the discretion under Section 311 of the Code by sunmoning and examining the Investigating Officer as C. W. 1 is entirely unsustainable.
9. The next and last point for consideration is whether the evidence adduced by the prosecution warranted a finding that petitioners were guilty of the offence under Section 342, I. P. C. A large number of witnesses were examined for the prosecution, their evidence was closely scrutinised by the learned Judicial Magistrate and was reappraised by the learned Sessions Judge. The learned Sessions Judge did not accept the conviction of the petitioners under Section 323 I. P. C. on the ground that the Medical Officer who had examined the injured was not examined as a prosecution witness and the injury reports were not admitted into evidence. He did not disbelieve the evidence on the prosecution witness with regard to the offence of wrongful confinement. It is settled law that concurrent findings of facts should not ordinarily be disturbed in revision unless the Court is satisfied that such findings are incorrect, illegal and improper. There are no grounds in this case to hold that the decision of the learned Courts below convicting the petitioners under Section 342 I. P. C. was incorrect, illegal or improper.
10. All the contentions raised by the learned counsel for the petitioners fail. The conviction of the petitioners under Section 342 I. P. C. is well founded. The sentence imposed is lenient. This is not a fit case for interference in revision.
11. In the result, the revision is dismissed.