1. Notice to Public Prosecutor.
2. These are two criminal revision petitions, which have been filed against the orders made by the learned Stationary Sub-Magistrate. Kulitalai that he should examine an officer as a court witness in C. C. Nos. 839 and 840 of 1950.
3. I am unable to see any objection to thecourse adopted by the learned Stationary Sub-Magistrate. Under S. 540, Cri P. C. a Courthas unrestricted powers of summoning a witness.The only restriction is that this power shouldnot be exercised as has been pointed out bySomasundaram J. in - 'In re K. V. R. S. Mani' : AIR1951Mad707 , to save the parties fromtrouble and expense. Subject to this, it is notonly the prerogative but also the plain duty ofa Court to examine such as those witnesses asit considers absolutely necessary for doingjustice between the State and the subject. Itwould not be an improper exercise of the powersof the Court under S. 540, Cri. P. C. merelybecause the evidence taken supports the case ofthe prosecution and not that of the accused -'Narayana Nambiar v. Emperor' : AIR1942Mad223 . A just decision under S. 540, Cri. P. C.does not mean a decision in favour of thedefence.- 'Kesave Piltai v. Emperor', AIR 1929 Mad 837 (C).
4. The only rules, which the Magistrate must bear in mind when examining court witnesses are (1) that the prosecution and the accused are both equally entitled to cross-examine a court witness, and (2) that if the evidence of a court witness is prejudicial to the accused, opportunity to rebut the evidence so given must be given to the accused.
5. Subject to these twin rules dictated by fair-play and justice. I am unable to see any other restriction, which can be usefully placedand certainly there can be no restriction to the examination of a court witness as Is now sought to be made out.
6. In this connection, we can usefully remember an extract from Burke in the Trial of Warren Hastings,
'A Judge is not placed in the high situationmerely as a passive instrument of the parties.He has a duty of his own, independent ofthem and that duty is to investigate thetruth.'
Lumpkin J. in - 'Epps v. State (U. S. A.)', observed,
'Counsel seek only for their clients' success;but the Judge must watch that justicetriumphs.'
The learned Stationary Sub-Magistrate of Kulitalai, therefore, has to be congratulated for discharging his duty, viz. examining a witness whom he considered as essential for finding out the truth in the case and not having taken an abbreviated view of his own functions and left in doubt masters in dispute which ought to be resolved in the paramount interests of justice.
7. The petitions are dismissed.