1. These three petitions are preferred against an order passed by the Special First Class Magistrate, Madura, in C.C. NOS. 1, 2 and 3 of 1948 on his file. The order in question was passed under Section 540, Cr. P. C., calling Mr. K.R. Venkatarama Aiyar to be examined in the cases as a court witness.
2. The petitioner is the second accused in the cases and the cases against him and another are for criminal breach of trust in respect of the moneys belonging to the Hindustan Bank of which the first accused was the agent and the petitioner herein, one of his constituents. A civil suit has been filed by the bank which is O. S. No. 65 of 1947 on the file of the Sub-Court, Dindigul in which the petitioner and his father, the witness sought to be examined, have filed written statements. The suit also relates to the payment of moneys by the first accused to the second accused. The present prosecution is founded very much and is based upon the plaint allegations. The case of the prosecution appears to be that the first accused has dishonestly and fraudulently advanced large sums of money to the petitioner herein on securities which are either insufficient or which did not exist, contrary to the directions given to the-first accused. The charge sheet in the case has been filed after the written statements in the suit have been filed. The prosecution was, therefore, aware of what was contained in the written statement of Mr. Venkatarama Aiyar which was practically adopted by his son, the petitioner herein. After the examination of the prosecution witnesses charges were framed on 7-1-1950 and when further cross-examination of the witnesses was going on, an application was filed by the prosecution on 6-9-1950 to examine one Kadir Batcha as additional witness for the prosecution and on the same day, an application was made to examine Mr. K. E. Venkatarama Aiyar as a court witness. Again on 9-9-1950 another application was made to examine three more witnesses and all these four additional witnesses were examined between 25-9-1950 to 30-9-1950. The order deciding to call Mr. Venkatarama Aiyar as a court witness was passed on 25-9-1950. A copy of the application (called memo) filed to examine Mr. Venkatarama Aiyar as a court witness has been filed before me. It is stated therein that the prosecution feels that the statement of Mr. Venkatarama Aiyar is substantially true and yet as according to the prosecution it will not be admissible in evidence unless Mr. Venkatarama Aiyar goes into the box and files it andswears to the correctness of the facts mentioned therein, he should be called as a witness to prove the facts. In short, though according to the prosecution, the written statement is not evidence by itself, it must be rendered so by the examination of Sri Venkatarama Aiyar. Another point that is urged in the memo is that a number of letters from and to Sri Venkatarama Aiyar have been marked as exhibits and that as the proper mode of proving them is by examining Sri Venkatarama Iyer it prays that the Court may call for him to prove these exhibits. It may be stated at this stage that all these have been filed on the side of the defence. Paragraph 4 of the memo states that the prosecution are hopelessly unable to take the responsibility of putting him into the box as a prosecution witness as he is the father of the petitioner and has been defending him in Court to some extent. This attempt on the part of the prosecution to get Mr. Venkatarama Aiyar examined as a court witness was objected to by the petitioner and the lower Court in its order states that the reasons given by the Special Public Prosecutor are convincing and there does not seem to be much substance in the objection raised by the second accused and ultimately the Magistrate finds that after going through the evidence of witnesses, he considers that the evidence of Mr. Venkatarama Aiyar is essential for the just decision of the case and so he decided to call Mr. Venkatarama Aiyar as a court witness.
3. It appears from the statements made at the Bar that until the charge was framed, Mr. Venkatarama Aiyar was not appearing for the accused but subsequent to the framing of the charge he was appearing for his son now and then. It was, therefore, contended that to take him as a witness at this stage would be to deprive the petitioner of Mr. Venkatarama Aiyar's assistance and that it would subject the accused to a grave handicap in his legitimate effort to vindicate his innocence. In answer to this, the learned Public Prosecutor stated that at the time when Mr. Venkatarama Aiyar appeared for the petitioner, the prosecution mentioned to the Court that it may call him as a witness. This is not disputed by the other side. Therefore there was no surprise to the defence at Mr. Venkatarama Aiyar being called as a witness and the contention that his being taken away as a witness at a time when his assistance is most needed is likely to prejudice the petitioner's case has no force. But this shows that the prosecution was aware and did think that Mr. Venkatarama Aiyar would be a material witness on its side. In fact the memo filed itself suggests that his evidence is necessary toprove some of the defence exhibits and that his evidence would also materially help the prosecution. As already stated, at the time when the charge sheet was filed the prosecution was aware of the written statement and if the allegation in the written statement was of material support to the prosecution case, it would have cited him as a witness for the prosecution; nor did it subsequently ask the Court to examine him as an additional witness, though it did apply subsequently for examination of additional witnesses who were examined. The prosecution without choosing to examine him on its side chose the method of asking the Court to exercise its powers under Section 540, Cr. P. C., to examine him as a court witness so that it can have an opportunity of cross-examining him. Mr. Venkatarama Aiyaf is a prominent member of the Madura Bar and there is no reason for the prosecution to think that he would either go back on his written statement or that he would speak anything contrary to what is contained therein. If his evidence is material it is the duty of the prosecution to call him as its witness and its failure to do so undoubtedly constitutes a defect in its case.
4. The question now is whether he can be permitted to be called as a court witness under Section 540, Cr. P. C., which runs as follows :
'Any Court may, at any stage of any inquiry, trial or other proceeding under this rode, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or re-call and re-examine any person already examined; and the Court shall summon and examine or re call and re-examine any such person if his evidence appears to it essential to the just decision of the case.'
This section consists of two parts: (1) giving a discretion to the Court to examine the witness at any stage and (2) the mandatory portion which compels a Court to examine a witness if his evidence appears to be essential to the just decision of the case. The discretion that is given under the section, as already stated, is very wide and the very width requires a corresponding caution in using the power given to a Court under that section. By its very nature, the discretion to be exercised under Section 540, Cr. P. C., depends on the facts of each case. It is indeed difficult to lay down a general rule as to when and under what circumstances the discretion ought to be exercised. Although the power of the Court to examine a person as a court witness is governed in this country by Section 540, Cr. P. C., such powers exist in the Courts in England also and as our procedure is fashioned mostly on the procedure of the Courts in England, it will be instructive to consider the English decisions on the subject.
5. In R. v. Chapman, (1838) 8 C. & P. 558 : 173 E. R. 617 and R. v. Holden, (1838) 8 C. & P. 606: 173 E. R. 638 which are the earliest decisions on the point, it was held :
'The presiding Judge at a criminal trial has the right to call a witness not called either by the prosecution or the defence, and without the consent of either the prosecution or the defence, if in his opinion, this course is necessary in the interests of justice,'
In King v. Harris, 1927-2 K. B. 587 : 96 L. J. K. B. 1069, Avory J. who delivered the judgment, after referring to the above two decisions, states as follows:
'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. But it is obvious that injustice may be done to an accused person unless some limitation is put upon the exercise of that right and for the purpose of this case we adopt the rule laid down by Tindal C. J. in Reg v. Frost, (1839) 9 C & P 129 : 4 St. Tr. (N. S.) 86; where the Lord Chief Justice said, '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.' That rule applies only to a witness called by the Crown and on behalf of the Crown, but we think that the rule should apply to a ease where a witness is called in a criminal trial by the Judge after the ease for the defence is closed, and that the practice should be limited to a case where a matter arises ex improviso, which no human ingenuity can foresee, on the part of a prisoner, otherwise injustice would ensue.'
The learned Judge hold ultimately as follows at page 596:
'In the circumstances, without laying down that in no case can an additional witness be called by the Judge at the close of the trial after the case for the defence has been closed, we are of opinion that in this particular case the course that was adopted was irregular, and was calculated to do injustice to the appellant Harris.'
This case was referred to in Stanley Liddle, 21 C. A. Rep. 3 and the learned Chief Justice in delivering the judgment states at page 13 :
'More than that, it appears also that the matter which was in question was a defence of an alibi set up by the prisoner the commonest of all defence; there is nothing ex improviso about such a defence as that. It did not require ingenuity, but only ordinary commonsense to conceive that a person who was charged might fee going to say that he was not the man. In the circumstances it appears to us that neither of the conditions laid down in the case of King v. Dora Harris, (1927) 2 K. B. 587 : 96 L. J. K. B. 1069 was here fulfilled.'
The learned Chief Justice held that the course which was taken was irregular and was not rendered necessary by any emergency and as it was likely to cause injustice to the accused,allowed the appeal and quashed the conviction. This is approved again in George Andrew Campbell Memohan, 24 C. A. Rep. 95. In Harold Narman Day, 27 C. A. Rep. 168, the same rule was applied and the conviction was quashed. The English law as seen from the above decisions proceeds on the principle that though the Court has got a right to call a witness if it thinks necessary, still the discretion is to be limited to the conditions mentioned in The King v. Dora Harris, (1927) 2 K. B. 587: 96 L. J. k. B. 1069 that is to say that the practice should be limited to cases where a matter arises ex improviso which no human ingenuity can foresee on the part of a prisoner, otherwise injustice will ensue.
6. But, as already stated, we are governed by Section 540, Cr. P. C., which consists of two parts, the first part which gives a very wide discretion seems to be similar to the right enjoyed by the English Courts. It is only the second part which enjoins the Court to call a witness if it thinks the evidence of a particular witness is essential for the just decision of the case. Even so, the question is whether when the prosecution knowing full well and being in possession of all the materials which can be spoken to by a particular witness and intending to call him as a witness and intimating to the Court at one stage that it intends to call him as a witness fails to do so whether the Court can exercise its powers to call such a person as a court witness. The exercise of the power of Court in the circumstances will only amount to filling up a gap in the prosecution case. In Narayana Nambiar v. Emperor : AIR1942Mad223 after referring to the English and Indian decisions Horwill J. pointed out as follows :
'If, in the present case, the learned Magistrate had examined C. W. 1 for the sole purpose of contradicting D. W. 6 I might have been inclined to hold that he had not exercised his powers under Section 540, Cr. P. C., judicially.'
But then he holds in that case that it is only on account of the lack of foresight on the part of the prosecution the particular witness was not called by it and that need not prevent the Court from examining him as a court witness. In this case as already pointed out Mr. Venkatarama Aiyar is essentially a witness for the prosecution who should have cited him either in the charge sheet or immediately afterwards. The failure of the prosecution to call him as a witness cannot be made up by the Court exercising its power under Section 540, Cr. P. C. Although the Court can examine a witness at the instance of the prosecution or defence, still when the prosecution asks the Court to examine him because it could not examine him, though ithad intended to do so, that should be no groundfor the Court to exercise its discretion under Section 540, Cr. P. C. In my opinion, the Court hasin this case exceeded its powers and the ordertherefore calling Mr. K.R. Venkatarama Aiyaras a court witness should be quashed. Theorders of the lower Court are set aside and thepetitions are allowed.