M.M. Punchhi, J.
1. The petitioner was undergoing trial before a Judicial Magistrate 1st Class, Barnala under Section 9 of the Opium Act. It was alleged against him that he was found to be in possession of 20 kgs. of opium. The prosecution had closed its case. The accused had been examined under Section 311, of the Code of Criminal Procedure, and he had closed his defence. It is at that stage that an application was made by the prosecution to get produced as Court evidence an affidavit of one Harpal Singh, a functionary of the office of the Chemical Examiner, to whom Constable Sadhu Ram had handed over the sample of opium, and with whom the sample had remained intact, till it went into the hands of the Chemical Examiner. Seemingly, (though not said in so many words by the learned Judicial Magistrate) this was necessitated by the prosecution on account of three Single Bench decisions of this Court reported as Tehal Singh v. State of Punjab, Criminal Revision No. 219 of 1979 decided on 20th Nov. 1980. Reported in (1981) 8 Cri LT 58 (Punj & Har) Araarih Singh v. State of Punjab 1981 Chand LR (Cri) 608 and Atma Singh v. State of Punjab 1981 Chand LR (Cri) 612 (the latter two decisions rendered by me) where absence of such link evidence was held to be fatal to the prosecution.
At this place, it deserves mentioning that the correctness of the aforesaid Single Bench decisions was doubted by I. S. Tiwana, J. in Mohinder Kumar v. State of Punjab, Criminal Revision No. 1043 of 1981, who referred the matter to a larger Bench on 28th Sept. 1981 to consider the correctness of the ratio of these cases. But it seems that the Bench so constituted may now not undertake the exercise, since the aforesaid three cases as also two similar cases Cr. Revision No. 304 of 1979 (Gurcharan Singh v. State of Punjab) decided on 5th Feb 1981, and Bishno v. State of Punjab 1981 Chand Cri c 243 : 1982 Cri LJ NOC 22 (Puni & Har) have impliedly been overruled by a Division Bench in Cr. Appeal No. 479 (D. B. A.) of 1980 (State of Punjab v. Nachhattar Singh) on 5th Jan. 1982, reported in 1982 Cri LJ 1197 holding that such evidence is outside the purview of linkage.
2. To continue with the case in hand, the learned Magistrate vide his order, now impugned, allowed the application being of the view that the evidence sought to be brought on record was essential for the just decision of the case. He also observed that the accused would have the right to rebut or belie the genuineness of the affidavit of Harpal Singh because the case was still at the trial stage. On admission of this petition impugning that order, proceedings before the trial Court were stayed by the Motion Bench.
3. The main thrust of the learned Counsel for the petitioner is that such evidence could not be brought on the record by any circumstances when the defence of the petitioner stood closed. Strength for the argument was sought from a few decisions of this Court which are presently being adverted to.
4. In Bhag Singh v. State of Haryana Criminal Revision No. 356 of 1971 decided on 13th July, 1971, B. S. Dhillon J. observed as follows:
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 Jamatrai Kewalji Govani v. State of Maharashtra 1968 Cri LJ 231 (supra) lays down that the powers of Magistrate under Section 540 of the Criminal Procedure Code are too wide and in a given case if the learned Magistrate comes to the conclusion that for a just decision of the case evidence 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 principle as laid down in In re K.V.R.S. Mani : AIR1951Mad707 and Shreelal Kajaria State ILR (1963) Bom 698 : 1964 (2) Cri LJ 15. These judgments lay down the principle that the powers under Section 540 of the Code of Criminal Procedure 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.
5. The decision of Bhag Singh's case afore-referred to was adopted by A. S. Bains J. in Santokh Singh v. State of Haryana 1975 Chand LR (Cri) 119. Similarly, in Didar Singh v. State of Punjab 1977 Chand LR (Cri) 60 (Punj & Har) Surinder Singh J. followed Santokh Singh's case aforereferred to. Thus, all these three Single Bench decisions have taken the view that the powers under Section 311 of the Code of Criminal Procedure, 1973 (erstwhile Section 540 of the old Code) cannot be exercised to the disadvantage of the accused, particularly when his defence has been closed. That view has been taken avowedly on the strength of the Supreme Court decision in Jamatrai Kewalji Govani v. State of Maharashtra : 1968CriLJ231 . And these decisions are pressed into service to persuade me to follow the beaten track. However, I am hesitant to do so for my reasons recorded hereafter, since I feel that the import of Govani's case of the Supreme Court afore-referred to has not been fully appreciated in the aforementioned decisions of this Court And the powers conferred on the Court under Section 311 of the Code of Criminal Procedure, 1973 (Sec. 540 of the old Code) and Section 165 of the Indian Evidence Act, which two sections between them confer jurisdiction and wide powers on the Judge to act in aid of justice, have aimlessly been curtailed' therein.
6. At page 181 (of AIR) : (at pp. 233, 234 of Cri LJ) in Jamatrai Kewalji Govani's case 1968 Cri LJ 231 (supra), the Supreme Court quoted the words of Tindal, C.J. in Reg v. Frost (1840) 4 St. Tr. (NS) 85 at p. 86 reflecting one aspect, which are as under:
There is no doubt that the general rule is that where the Crown begins its case like a plaintiff in a civil suit, they cannot afterwards support their case by calling fresh witnesses, because they are met by certain evidence that contradicts it. They stand or fall by the evidence they have given. They must close their case before the defence begins; but if any matter arises ex improviso, which no human ingenuity can foresee, on the part of a defendant in a civil suit, or a prisoner in a criminal case, there seems to me no reason why that matter which so arose ex improviso may not be answered by contrary evidence on the part of the Crown.
7. The Supreme Court at the same time observed that there was the other aspect, namely, of the power of the Court which is to be exercised to reach a lust decision and this power was exercisable at any time as the Code of Criminal Procedure clearly stated. The view of Avory, J., in Rex v. Dora Harris (1927) 2 KB 587 at p. 594, was then noted by the following words:
The cases of Reg. v. Chapman (1838) 8 C and p 558 and Reg. v. Holden (1838) 8 C and P 606 establish the proposition that the presiding judge at a criminal trial has the right to call a witness not called by either the prosecution or the defence, if in his opinion this course is necessary in the interest of justice. It is true that in none of the cases has any rule been laid down limiting the point in the proceedings at which the judge may exercise that right.
8. But Avory J. then took the view that some limitation had to be put on the exercise of that right by the Judge and applying the rule laid down by Tindal C.J. aforequoted, opined 'that the practice should be limited to a case where the matter arises ex improviso which no human ingenuity could foresee, on the part of a prisoner, otherwise injustice would ensue, but otherwise fresh evidence could not be allowed after the close of the whole case.'
Indian Courts in In re. K.V.R.S. Mani : AIR1951Mad707 and Shreelal Kajana v. State : AIR1964Bom165 applied the principle of the case of Dora Harris holding that the powers under Section 540 of the old Code of Criminal Procedure, though wide, must not be exercised to the disadvantage of the accused, particularly after his defence is over. And these decisions were noticed by the Supreme Court as applying in essence the decision in Reg. v. Frost 1940-4 St Tr (Ns) 85 as applied in Rex v. D. Harris 1927-2 KB 587 (supra). The Supreme Court also took note of contrary decisions of other High Courts which were found to be expounding a liberal interpretation in favour of Court's power spelled out from Section 540 of the Code, and in reconciling the two views observed as follows:
It is difficult to limit the power under our Code to cases which involve something arising ex improviso which no human igenuity can foresee, in the course of the defence. Our Code does not make this a condition of the exercise of the power and it is not right to embark on judicial legislation. Cases that go that far are of course not quite right. Indeed they could be 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.
9. From the light emanating from Jamatraj Kewalji Govani's case 1968 Cri LJ 231 (SC) (supra) and, in particular, from the portion extracted therefrom above, it is plain to me that the case reported as : AIR1951Mad707 and : AIR1964Bom165 were :impliedly overruled (so far as they have decided- to the contrary). But the three learned single Judges of this Court have gone on the assumption that the Madras and Bombay cases were seemingly approved by the Supreme Court in Jamatrai Kewalji Govani's case (supra). Thus, with due respect to the learned Judges it seems to me that a discarded principle has been taken to be alive and kept followed to the effect that the Court power under Section 311 of the Code of Criminal Procedure, 1973 stands ousted altogether when the defence is closed by the accused. But it appears to me that interests of justice and all steps in aid of it have to remain paramount. These cannot be dwarfed or hurdled even by Judge-made law. Thus, it is the law as laid down by the Supreme Court which I am obliged to follow, and which I do. distinguishing the aforementioned Single Bench judgments of this Court on principle.
10. In view of the foregoing discussion, it is held that the power of the Court to examine a witness for the just decision of the case as conferred by Section 311 of the Code of Criminal Procedure cannot be curtailed in any manner or beyond any staging, so long as the Court retains seize in of the matter. The impugned order, in the light thereof, is unassailable. Consequently, this petition fails and is hereby dismissed.