Kulwant Singh Tiwana, J.
1. The facts leading to this revision are that Sukhdev Singh petitioner is facing trial in the Court of the Chief Judicial Magistrate, Sangrur, for an offence under Section 9 of the Opium Act. The prosecution dosed its evidence against the petitioner on 22nd of April, 1981. He was examined under Section 313 of Criminal P. C, 1973 on 29th of April, 1981. The defence was closed by him on 20th of July, 1981 On 23rd of July, 1981, the prosecution filed an application in the Court of the Chief Judicial Magistrate, Sangrur, in the light of the judgment of this Court in Criminal Revision No. 336 of 1979 decided on 24th of February, 1981, reported as Atma Singh v. State of Punjab, 1981 Chand Cri C 181 (Punj & Har), for examining the Clerk of the office of the Chemical Examiner to prove that the sample had reached in that office with seals intact and that the sample was handed over to the Chemical Examiner in that very condition. The application was opposed on behalf of the petitioner. The learned Chief Judicial Magistrate, Sangrur noticed Santokh Singh v. State of Haryana 1975 Chand LR (Cri) 119, in which it was laid down that the prosecution cannot be permitted to fill in the lacuna, but he, however, allowed the prosecution to examine the Clerk of the office of the Chemical Examiner or the production of his affidavit to complete the link in the evidence in view of the judgment in Atma Singh's case (supra).
2. The petitioner did not feel satisfied with the order of the learned Chief Judicial Magistrate and has filed this revision, which, straightway at the motion hearing, was admitted to a Division Bench.
3. Shri Bachittar Singh Giani, learned Counsel for the petitioner has argued that the prosecution cannot be permitted to fill in a lacuna in its evidence at a late stage of the case when it is fixed only for arguments. He has sought help from The King v. Dore Harris (1927) 2 KB 587, State of Rajasthan v. Daulat Ram : 1980CriLJ929 and Santokh Singh v. State of Haryana 1975 Chand LR (Cri) 119, to urge that once in a case the prosecution evidence is closed and the case reaches the final stage, the prosecution cannot be allowed to fill up the gaps in its case by allowing the examination of evidence, which it could tender at the trial before closing its case.
4. If the prosecutor after the closure of his evidence finds that for one reason or the other, which of course is required to be persuasive, some witnesses, who were necessary for his case, could not be cited, or if cited could not be examined or some documents could not be tendered or exhibited in evidence, he has two options open before him. One is to ask the Court for permission to lead additional evidence or request it to exercise its right under Section 311 of Criminal P. C, 1973, for brevity referred as the 'Code'. His choice on the first option is very limited and, except in exceptional casts, may not merit the approval of the Court. He can always crave to convince the Court for proceeding under Section 311 of the Code. Section 311 which is in two parts, is as under:
S. 311: 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 person already examined; and the Court shall summon and examine or recall and re-examine any such person it his evidence appears to it to be essential to the just decision of the case.
In this case we are not concerned with the second part as the Magistrate had not formed a conclusion that the evidence permitted to be summoned was essential to the just decision of the case. The Magistrate had exercised his discretion in the first part of this section. It is expressed in the widest possible terms and the intention is not to limit the discretion of the trial Court in any way either to the stage at which the powers of the Court should be exercised or with regard to the manner they should be exercised. The discretion is required to be exercised by the Court keeping in view the just decision of the case unmindful of the fact whether any party before it gains or loses from the exercise of such discretion under this section. There is no doubt that the object of the section is not to enable anyone or the other party to fill up the gaps of its case. The section is not to be used to enable the prosecution either to improve its version at a later stage or enable it to repair the lacunae. The sole criterion in such a case should be whether the exercise of power under this section is necessary in the interest of justice. While exercising this discretion the Court has to keep in its mind the well known principle of law that the order should not operate as a rebuttal of the case set up by the defence after the prosecution case is closed. The use of this section cannot be limited only to something arising ex-improviso which no human agency could see, as is the dictum in Dora Harris case. The Supreme Court in Jamatraj Kewalji Govanj v. State of Maharashtra : 1968CriLJ231 , examining a similar situation under Section 540 of Criminal P. C, 1898, (hereinafter to be referred as the old Code), which is equivalent to Section 311 of the new Code, did not approve of it, as would be apparent from an extract from this judgment quoted in the subsequent paragraph of this judgment.
5. We are noticing Single Bonch decisions of this Court, which express the same view, as is expressed in Santokh Singh's case 1975 Chand LR (Cri) 119, relied upon by the learned Counsel for the petitioner, but they cannot be preferred to a Division Bench decision of this Court reported in State of Punjab v. Des Raj ILR (1978) 1 Punj & Har 331 : 1978 Cri LJ 1329. The facts of this case were that the police on the basis of recovery of the illicit liquor from the possession of Des Raj prosecuted him for the violation of Section 61(1)(a) of the Punjab Excise Act. Des Raj had closed his evidence and after that the prosecution moved an application in Court under Section 540 of the old Code, for summoning of the formal witnesses, whose evidence had been tendered in Court. The application was dismissed by the Magistrate and the accused was acquitted. The State of Punjab came in appeal to this Court against the judgment acquitting Des Raj. It was pointed out on behalf of the State that in view of the judgment reported in Som Nath v. State 1973 Chand LR (Cri) 156, the affidavits were not properly attested. The Division Bench also noticed Santokh Singh v. State of Haryana 1975 Chand LR (Cri) 119 and Amir Chand v. State of Haryana 1976 Chand LR (Cri) 269. The right of the Court to summon such evidence was accepted in this case. The relevant portion of the judgment, in which extracts from Jamatraj Kewalji Govani's case 1968 Cri LJ 231 (SC) (supra) were also quoted, is as under:
The learned Counsel for the respondent has cited before us two Single Bench decisions of this Court, reported in Santokh Singh v. State of Haryana 1975 Chand LR (Cri) 119 and Amir Chand v. State of Haryana 1976 Chand LR (Cri) 269, wherein the learned single Judges who delivered those judgments held that it was neither open to the Sessions Judge while hearing the appeal of the accused either to remand the case to the trial Court in order to permit the prosecution to rectify the defect in its evidence by either placing fresh affidavits duly attested in the prescribed manner or by calling the deponents of those affidavits 'the' witness box. Nor is it open to the first appellate Court itself to have the needful done by invoking the provisions of Section 540 of Cr. P.C. for according to the learned Judges, it would be improper to have done so when the defence of the accused had been closed.
We are of the opinion that bringing on the record additional evidence of the kind in order to rectify the defect of the kind would in no manner prejudice the case of the accused. In fact, it would be moat appropriate to exercise its discretion under Section 540 and not to do so would, in our opinion, result into miscarriage of justice. Section 540 of the Cr. P.C. confers seemingly wide powers on the Court to permit additional evidence envisaged therein the interest of justice. In Jamatraj Kewalji Govani v. State of Maharashtra : 1968CriLJ231 , Hidayatullah, Sikri and Vaidialingam, JJ. have underscored the aforesaid observations with the following enunciation of law on the point:
In the present case, the prosecution did not wish to rebut the defence case. It merely wanted to rectify a technical flaw which became apparent as a result of decision of this Court in Som Nath's case (supra).
It was held that the Court ought to have allowed the application filed by this prosecution for the additional evidence of the kind mentioned therein. The order of the acquittal of Des Raj was, however, not set aside as Des Raj had undergone the ordeal of proceedings in Courts since 1972. The application of this judgment, to the facts of the case, which are similar, will be noticed at a later stage.
6. Since Shri Bachittar Singh, learned Counsel for the petitioner, has cited Sanrokh Singh's case, we have examined other judgments of this Court, which came to our notiee, individually. The judgment in San-tokh Singh's case to hold that 'the prosecution cannot be allowed to fill up the lacuna in its case; especially when the trial has already concluded' was based on the decision of a learned single Judge of this Court in Criminal Revn. No. 356 of 1971 - Bhag Singh v. State of Haryana, decided on 13th of July, 1971. The facts of Bhag Singh's caae were that in a case under Section 9 of the Opium Act against Bhag Singh, the prosecution evidence was concluded on 21st of July, 1970 and his statement under Section 342 of the old Code was recorded on 18th of Aug., 1970. The defence evidence of Bhag Singh was closed on 20th of Nov., 1970 and the arguments in the case were heard on 24th of Nov., 1970. The prosecutor filed application for summoning witnesses, which due to inadvertence, could not be examined. The Magistrate allowed that application. The revision was dismissed by the Additional Sessions Judge, Ambala. In revision before this Court, it was held by the learned single Judge:
After taking into consideration the respective contentions of the learned Counsel for the parties, I am of the opinion that this petition must succeed. No doubt the Supreme Court case reported as Jamatraj Kewalji Govani v. State of Maharashtra 1968 Cri LJ 231 (supra) lays down that the power of Magistrate under Section 540 of the Cr. P.C. are too wide and in a given case if the learned Magistrate comes to the conclusion that for a just decision of the case evidenee of additional witnesses is necessary, such witnesses can be summoned at any stage but at the same time their Lordships of the Supreme Court in the same judgment approved of the principles as laid down in re K.V.R.S. Mani : AIR1951Mad707 , Shrtelal Kajaria v. State ILR (1963) Bom 698 : (1964) 1 Cri LJ 15. These judgments lay down the principle that the powers under Section 540 of Criminal P.C. wide though they may be, must not be exercised to the disadvantage of the accused particularly after his defence is over. This principle was approved by their Lordships of the Supreme Court.
The revision filed by Bhag Singh was accepted and the order of the- Magistrate calling the witnesses was quashed. On merits of this case it was held:
The application which was moved by the Public Prosecutor for summoning these witnesses has not mentioned any convincing ground on which discretionary power could be exercised by the learned Magistrate. The application only show, that inadvertently the prosecution could not produce these' witnesses. This can hardly be a ground for summating the witnesses especially in a case where the defence has been closed and the arguments have been heard and the lacuna in the prosecution case has been pointed out on behalf of the defence.
This observation was on the factual aspect of the case. The observation quoted right above this passage was on the legal side. The impression created by Jamatraj Kewalji Govani's case 1968 Cri LJ 231 (SC) on the mind of the learned single Judge was that K.V.R.S. Mani and Shreeial Kajaria's cases had been approved by the Supreme Court. The impression of the learned single Judge does not seem to be correct. In Jamatraj Kewalji Govani's case, their Lordships referring to these cases observed (paras 11 to 13):
Mr. Jethmalani relies strongly upon this case and cites several decisions of the High Courts in India in which this dictum was applied. In particular he relies upon in re K.V.R.S. Mani : AIR1951Mad707 ; Shreeial Kajairia v. State : AIR1964Bom165 and in re V. Mahadevan 1964-2 Mad LJ 581. In these cases, it is laid down that the powers under Section 540 of Cr. P.C. wide though they may be, must not be exercised to the disadvantage of the accused, particularly after his defence is over.
There is nothing new in these cases. They follow in essence the decision in Reg v. Frost as applied in Dora Harris case, 1927-2 KB 587. On the other side reliance is placed upon in re, K. K. Narayanan Nambiar AIR 1942 Mad 223 : 1942-43 Cri LJ 557; State v. Sheikh Mohamad Abdullah (1964) 2 Cri LJ 88 (J & K); Ratnakar Das v. State : AIR1966Ori102 and Ramjeet v. State : AIR1958All439 among others in which a liberal interpretation in favour of the Court's powers is placed upon the section.
It is not necessary to refer to the cases cited on either side. They illustrate the application of the general principle spoken to by Avory, J. in the extract from Dora Harris case (1927) 2 KB 587 and the condition laid down in (1840) 4 St Tr (NS) 85. Dora Harris (1927) 2 KB 587 and (1840) 4.St Tr (NS) 85 cases involved rebuttal of the defence evidence. In neither case was there any unexpected move by the prisoner and the evidence was, therefore, wrongly admitted. It is difficult to limit the powers under our Code to cases which invoke something arising ex-improviso which no human ingenuity could foresee, in the course of the defence. Our Code does not make this a condition of the exercise of the powers and it is not right to embark on judicial legislation. Cases that go that far are of course not quite right. Indeed, they could bet decided on fact because it can always be seen whether the new matter is strictly necessary for a just decision and not intended to give an unfair advantage to one of the rival sides. Even in England where the rule in Dora Harris case (1927) 2 KB 587 obtains, the powers of the Court have not been held to be wrongly exercised, when fresh evidence has been let in for a just decision. In Willian Sullivan (1922) 16 Cr App Rep 112 (Rex v. Sullivan (1922) 16 Cr App Rep 121) rebutting evidence was held to be properly called when the accused put forward a suggestion which could not have been foreseen and in John McKenna (1956) 40 Cr App Rep 65, it was held that a Judge had complete discretion whether a witness should be recalled and that the Court of Criminal Appeal would not interfere unless it was made to appear that injustice had been caused. In that case (like the one here) the defence had closed the case and the accused had submitted that there was no case to go to the Jury.
It would appear that in our criminal jurisdiction, statutory law confers a power in. absolute terms to be exercised at any stage of the trial to summon a witness or examine one present m Court or to recall a witness already examined, and makes this the duty and obligation of the Court provided the just decision of the case demands it. In, other words, where the Court exercises the power under the second part, the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the Court is right in thinking that the new evidence is needed by it for a just decision of the case. If the Court has acted without the requirements of a just decision, the action is open to criticism but if the Court's action is supportable as being in aid of a just decision the action cannot be regarded as exceeding the jurisdiction.
The above quotation makes the whole matter clear that the Supreme Court in Jamatraj Kewalji Govani's case 1968 Cri LJ 231 had not approved the ratio in K.V.R.S. Mani 1951-52 Cri LJ 673 and Shreelal Kajaria cases 1964 (2) Cri LJ 15. In Jamatraj Kewalji Govani's case, the Supreme Court with reference to Section 540 of the old Code observed:
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.
It was further observed:
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.
7. The judgment in Santokh Singh's case 1975 Chand LR (Cri) 119 is based on Bhag Singh's case. Two other Single Bench decisions of this Court reported in Amir Chand v. State of Haryana 1976 Chand LR (Cri) 269 (Punj & Har) and Didar Singh v. State of Punjab 1977 Chand LR (Cri) 60 (Punj & Har) following the Santokh Singh's case have expressed the same view.
8. A contrary view to these judgments based on the line of Bhag Singh's case had been expressed in Rajinder Parshad v. State of Haryana (1977) 4 Cri LT 251 that Section 540 of the old Code gives wide powers to the Court to exercise its discretion before the case has been decided, even if the parties have concluded the evidence and argued the case. Similar is the view expressed in Avtar Singh v. State (1978) 80 Pun LR 562 : 1978 Cri LJ NOC 280. A Division Bench judgment of this Court in Gangal Singh v. State of Haryana (1977) 4 Cri LT 247, also requires to be noticed. The facts of this case and the observations of the Bench are:
It is not disputed that the affidavits of Banwari Lal and Ajit Singh, which were filed at the trial by the prosecution, were not objected to being inadmissible for want of proper attestation before the learned Magistrate. It was only at the appellate stage that an objection was raised to the attestation at the argument stage and the learned Judge, keeping in view the facts and circumstances of the case, allowed the prosecution to place on record duly attested affidavits of constables Banwari Lal and Ajit Singh, referred to above. We, therefore, do not find any ground to interfere with the order of the learned Sessions Judge.
This view of the Division Bench in this case is in consonance with the decision in Jamatraj Kewalji Govani's case and Avtar Singh's case (supra).
9. In view of the principles of law settled by the Supreme Court in Jamatraj Kewalraj Govani's case 1968 Cri LJ 231 (supra) and also in view of the Division Bench judgment of this Court reported in Des Raj's case 1978 Cri LJ 1329 (supra), the area of operation of Section 311 of the Code, which is equivalent to Section 540 of the old Code, cannot be limited or restricted. In State of Rajasthan v. Daulat Ram : 1980CriLJ929 , the prose cution had not examined the persons, who had taken the sample from the time of its seizure till it was examined by the Public Analyst. At the fag end of the case, application was made by the Prosecutor for summoning those witnesses under Section 540 of the old Code, which was dismissed. In the High Court, the stand taken by the State counsel was very vacillating. At one stage, he filed an application for examining additional evidence and withdrew it. The High Court upheld the acquittal and the Supreme Court in those circumstances where the prosecution was negligent and had not examined those witnesses, observed: 'It is obvious that the onus is on the prosecution to prove the entire case at the trial and the prosecution could not be allowed to fill up the gaps or lacunae left at the trial, at the appellate or revisional- stage'. That was considered too late a stage for invoking discretion under Section 540 of the old Code in the peculiar circumstances of that case. In the case in hand, the prosecution came with a prayer for summoning evidence at the earliest opportunity when the judgment in Atma Singh's case 1981 Chand Cri C 181 came to his notice, which was decided from the High Court on 24th of Feb., 1981. (The judgment of Atma Singh's case was published in July part of Chandigarh Criminal Cases of 1981). The judgment in Daulat Ram's case (supra) does not in any way run counter to the above referred to judgments in line with the Jamatraj Kewalji Govani's case.
10. The question, therefore, is whether or not after the entire evidence of the prosecution or the defence is over, the Court should permit further evidence to be allowed, will depend upon the facts of each case. It cannot be laid down as a general rule that in no case can additional witnesses be called by the Judge, at the suggestion of the prosecution, before the close of the trial of the case, where the defence has been closed or the arguments have been heard. Trial comes to an end with the pronouncement of the judgment, though judgment itself may not be part of the trial. In Jamatraj Kewalji Govani's case 1968 Cri LJ 231. It was observed : 'Section 540 is intended to be wide as the repeated use of the word 'any throughout its length indicates'. The very fact that the section is couched in wide terms requires a Judge to exercise caution in using his power under Section 311 of the Code. It is therefore, imperative that before using his powers the Judge has to take into account the circumstances of the case of examining witnesses after the entire case is closed and that should not cause injustice to the accused. It should not operate to demolish the case set up by the accused if he has done so in his defence. We do not think that the mere fact that evidence is permitted to be taken after the entire prosecution case Is over is in itself in excess of the powers of the Court. No hard and fast rules can be prescribed as to when and at what stage this discretion should be exercised. The anxiety for justice is paramount and should be kept in view. The Court should be unmindful of the fact of the use of the discretion in favour or against any party. The principle that such evidence should not demolish the caw set up by the accused in his defence, If be has done so, should be present to the mind of the Judge at the time when he takes a decision. The powers of the Court under Section 311, which are very wide, cannot be limited, as is the impact of the judgments in Bhag Singh and Santokh Singh's cases, and other cases following those cases,- tend to do. The Court under this section is to help neither the prosecution nor the accused. The discretion has to be exercised during the trial, which only terminates with the pronouncement of the judgment. Bhag Singh's case, Santokh Singh's case and other Single Bench judgments of this Court, expressing similar view, so far as they lay down that this discretion is limited and cannot be exercised at a late stage of the case after the defence is closed or the arguments are heard, do not lay down a correct law and, being contrary to the principles in Jamatraj Kewalji Govani's case (supra) and two Division Bench judgments of this Court, are overruled. The discretion can be exercised by the Court at any stage of the case, but on justifiable grounds.
11. In the case in hand, the defence evidence was closed on 20th of July, 1981 and the prosecution filed the application within three days of that. The prosecution gave a weighty reason in support of this application by relying on the judgment reported in Atma Singh's case 1981 Chand Cri C 181 (supra) impressing upon the prosecution to produce evidence from the office of the Chemical Examiner that the sample was received there with seals intact and that the seals remained in that very condition till the sample was analysed by the Chemical Examiner. On principles, the case is covered by the ratio of Des Raj's case 1978 Cri LJ 1329 (Punj & Har) (supra). The discretion in this case was, therefore, properly exercised by the learned Chief Judicial Magistrate, Sangrur and no interference in that is called for.
12. For the foregoing reasons, the revision is dismissed.