Krishnaswami Ayyangar, J.
1. The, accused B.K. Narayana Reddi was tried along with two others, namely Devanai Ammal and Ethiraja Pillai on 15th, 16th and 19th August last. The trial resulted in the conviction of Devanai Ammal and Ethiraja Pillai and they are now serving their respective terms of imprisonment. So far as Narayana Reddi is concerned, the jury brought in a verdict of not guilty by 5 against 4 with the result that I ordered the discharge of the jury. I decided that it was a fit case for Narayana Reddi to be tried again on the charge framed against him. At the request of his counsel I ordered his retrial by myself during this sessions. The case comes on for trial tomorrow, 3rd October 1940. Today the Crown Prosecutor makes an application for production before Court of the two prisoners aforesaid, namely Devanai Ammal and Ethiraja Pillai so that they may be examined and their evidence taken. The first question that arises is whether it is permissible for the Crown to examine these two persons, as witnesses for the prosecution. That they were not examined - as they could not have been examined - before the committing Magistrate during the preliminary enquiry is not by itself an objection to the Crown having their evidence taken. Under Section 286, as construed by a Full Bench of the Lahore High Court in Mt. Niamat v. Emperor ('36) 23 A.I.R. 1936 Lah. 533, the prosecution is not confined to the witnesses examined before the committing Magistrate but may examine other witnesses as well in the Sessions Court. But I am not satisfied that the Crown is entitled to have fresh witnesses summoned for the purpose of their evidence being taken and considered in the trial. If the prosecution have additional witnesses ready and available to them for giving evidence, their evidence can be taken, and so far as I can see there is no legal objection to this course. In view however of the fact that without the intervention of the Court the evidence of these two witnesses cannot be made available to the prosecution, the learned Crown Prosecutor is thrown back on the provisions of Section 540, Criminal P.C., on which he relies for the purpose of persuading me to summon and examine the two witnesses named by him as court witnesses. Section 540 runs as follows:
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 if his evidence appears to it essential to the just decision of the case.
2. The first portion of the section leaves a discretion in the Court to summon any person as a witness, a discretion which should as a matter of course be exercised judicially. The second and the latter portion of the section lays a duty on the Court to summon and examine any such person if it appears to the Court that the evidence of such person is essential to the just decision of the case. I have therefore to put myself the question whether this is a fit case in which in the exercise of my discretion I should summon these two prisoners who are now undergoing terms of imprisonment or whether I am satisfied that their evidence is essential to the just decision of the case. The relevant facts which I must remember in this connexion are these : According to the case for the prosecution Ethiraja Pillai, one of the two witnesses now sought to be summoned, stole the two postal orders in respect of which the offences charged are alleged to have been committed and passed them on to Narayana Reddi and Narayana Reddi in his turn got the orders cashed through Devanai Ammal, the other witness whose production is now sought. All the three, namely Devanai Ammal, Narayana Reddi and Ethiraja Pillai were tried together with the result I have already mentioned. In the course of the trial it appeared that Ethiraja Pillai had made a statement in the nature of a confession first to the investigating inspector Mr. Mahalinga Aiyar which statement he repeated in substance before Mr. Eaghunath Rao, the Presidency Magistrate who recorded his confession under Section 164, Criminal P.C. In the statement before Mr. Mahalinga Ayyar he stated:
The two orders shown to me were taken out from a cover. I secreted that cover and opened it in the dark behind the privy. I showed them to Narayana Reddi some two days after that and asked him if they will fetch any money. Narayana Reddi took them from me and said that he will get money for them. He did not pay me anything. I asked him and he replied that he threw them away.
3. In his statement before the Magistrate he said:
Narayana Reddi would ask us to bring some letters in covers received by post so that if there were notes in any of them they can be extracted. About six months ago one day I gave two such letters from the inland mail to that Narayana Reddi . There were two shilling notes in one envelope. I saw the number '20' on each of the notes. I handed over that letter to him and I do not know what happened to it subsequently. I gave him the other letter also. I was not present when he opened that letter. I do not know what he did with those notes and I never questioned him about them.
4. I may also add that immediately after Ethiraja Pillai made his statement to Mr. Mahalinga Ayyar he was taken to Mr. Byrne, the Presidency Postmaster, and he again confirmed the statement he had earlier made to Mr. Mahalinga Ayyar. When the case was before the committing Magistrate he retracted from these confessional statements and asserted that those statements were the result of inducements offered to him by Mr. Mahalinga Ayyar and by the police. The same attitude was taken up by him in this Court when he was being tried here. Devanai Ammal was also examined by Mr. Mahalinga Ayyar. She then stated that the two postal orders had been received by her from her brother Manicka Mudaliar and that she cashed them at the Vepary Post Office receiving Rs. 26-8-0 therefor. She said nothing to indicate that Narayana Reddi had anything to do with the postal orders. In fact her story was a contradiction of the case for the prosecution that it was Narayana Reddi who gave her the postal orders for their being cashed. That story she stuck to during the inquiry before the committing Magistrate though there was some difference with regard to the details of the transaction as spoken to by her.
5. It will be clear from what I have said that both these persons who are now sought to be produced before the Court for being examined as witnesses are, even according to the prosecution, accomplices whose evidence must be received with caution and not ordinarily to be accepted without corroboration in material particulars. So far as Ethiraja Pillai is concerned, he definitely went back upon the statements he made to Mr. Mahalinga Ayyar and to the Presidency Magistrate who recorded his confession. His statements made at the various stages leave no room for doubt that he is a person having little regard for truth and who for his own ends would not hesitate to tell lies. As regards Devanai Ammal it is plain that her case is totally at variance with that of the prosecution. She disassociated herself entirely from Narayana Reddi and far from admitting the receipt of the postal orders from Narayana Reddi she made the assertion that she got them from a different person, namely her own brother. The difference regarding the details of the story she gave before the committing Magistrate and that given here struck me at the time as a serious infirmity tending to show that her exculpatory statements were pure inventions. Evidence coming from such an untruthful person cannot but be regarded as extremely unreliable.
6. I have therefore little hesitation in holding that I should not summon either of these two persons or examine them in the trial of the accused in the exercise of my discretion under Section 540. I am equally unable to come to the conclusion that the evidence of such untruthful and unscrupulous witnesses is essential to the just decision of the case. I cannot imagine that justice will be advanced by introducing into the trial the evidence of persons with the antecedents mentioned above; far from advancing justice their evidence might very likely tend in the opposite direction. I must decline to have these two persons, namely Ethiraja Pillai and Devanai Ammal, produced before the Court for their evidence being taken.