1. The petitioner was convicted under Section 409, Penal Code, of committing criminal breach of trust by dishonestly misappropriating a sum Rs. 118-15-0 entrusted to him in his capacity as Head Clerk, District Court, North Malabar; and the offence is said to have been committed between 2nd December 1940 and the 17th of that month. His appeal was dismissed, the conviction and sentence being affirmed. The principal question which arises in this petition is whether the learned Magistrate, purporting to act under Section 540, Criminal P.C., exercised his discretion improperly in admitting the evidence of a person who was examined as C.W. 1. The prosecution let in evidence through P.Ws. 8 and 9 that on 14th December 1940, the petitioner took a sum of Rs. 2 out of the bag in which he kept his money as Head Clerk and gave it to P.W. 9 to purchase seven stamp papers, which were subsequently handed over to P.W. 8. Formal evidence was given to this effect and there was not much cross-examination on this point. The reverse sides of the stamp papers however show that six of them wore purchased in the name of one Appu Nair and one in the name of a still different person. There was therefore a possibility that the Court might be unable to accept the evidence of P.W. 9 in the face of the endorsements of the stamp vendor. The seventh paper was dated 4th December 1940, ten days before P.W. 9 is said to have made the purchase. Not unnaturally, the accused exploited these endorsements and examined a man who bore the name of Appu Nair and who deposed that he had purchased these papers. Faced with the possibility that P.Ws. 8 and 9 might be disbelieved because of an apparent discrepancy which he knew could be easily explained, the public prosecutor filed an application in the Magistrate's Court asking him to exercise his discretion under Section 540, Criminal P.C. and examine the stamp vendor as a witness. He did so; and the stamp vendor explained how it was possible for a person to purchase a stamp paper and yet for one to find some other name on the reverse. He also deposed that the Appu Nair whose name appeared on the reverse of six of the stamp papers was not D.W. 6, but an Appu Nair residing in an entirely different village to that in which D.W. 6 was living.
2. As will be seen from the wording of Section 540, Criminal P.C., it is extremely wide in its provisions and enables a Magistrate at any stage of any proceeding to examine any person as a witness; and, where it is essential to the just decision of the case, he is bound to do so. The very width of the powers given to the Magistrate require, however, a corresponding caution in using these powers. In the many cases cited by Mr. Srinivasa Ayyangar on behalf of the petitioner, various views have been expressed with regard to the power of the Court to examine witnesses after the defence case has been closed; but, in all those cases, it was obvious that the power had been misused. In Rex. v. Dora Harris (1927) 2 K.B. 587 the Recorder permitted the examination as a court witness of a co-accused who had throughout the trial been standing in the dock by the side of the accused against whom this evidence was let in and who was admittedly an accomplice. Avory J. who delivered the judgment of the Court, quotes at P. 594 the rule laid down by Tindall J. in Rex. v. Frost (1839) 9 C. & P. 129.
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.
3. However, in expressing the considered opinion of the Bench, Avory J. himself lays no restricting rule. He says:
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.
4. In India we are governed by the express provisions of Section 540, Criminal P.C., which, as I have said, is extremely wide in its terms. In Sital Singh v. Dalganjan Singh A.I.R. 1914 All. 526 after the prosecution case had been closed, the prosecution put in art entirely fresh list of witnesses to be called and the learned Judge held that that was an abuse of Section 540, Criminal P.C. In A.I.R. 1937 Ramachandra Prasad v. Emperor : AIR1937Pat246 the learned Judge found that the object of the additional evidence was merely to fill in an important gap in the prosecution case and that it would be wrong for a Court to invoke Section 540, Criminal P.C., for that purpose. In Narayana Nair v. Bhargavi Amma A.I.R. 1927 Mad. 361 Curgenven J. found that the prosecution evidence as originally let in disclosed no case against the accused at all and that the Court had based its finding against the accused exclusively on evidence adduced subsequently. In Collett v. Emperor 1929 M.W.N. 395 the Prosecuting Inspector had deliberately refrained from examining the wife of the accused because he knew that she would not give evidence in support of the prosecution. He therefore adopted the plan of persuading the Judge to examine her as a court witness, so that he could cross-examine her. It was held that that was a gross abuse of the exercise of the powers given to the Magistrate under Section 540, Criminal P.C. Nevertheless, it was found that there was abundant other evidence and the convictions were confirmed. In Natabar Ghose v. Adaya Nath : AIR1923Cal690 some general remarks on the use of Section 540 are found, but no reasons are given for the particular decision arrived at. In Emperor v. Satyendra Kumar : AIR1923Cal463 the abuse of Section 540, Criminal P.C., was of the same nature as in Collett v. Emperor 1929 M.W.N. 395, In Udho Ram v. Emperor A.I.R. 1929 Lah 120 the Magistrate, after hearing the evidence of both sides and the arguments, when nothing remained but to pronounce judgment, suddenly decided to hold a local inspection and, without any notice either to the prosecution or the acaused, examined four witnesses at the scene of offence.
5. Mr. Srinivasa Ayyangar particularly relies on some remarks to be found in Sital Singh v. Dalganjan Singh A.I.R. 1914 All. 526 that no witnesses should be examined at the bidding of any person; and he argues in this case that this C.W. 1 was examined at the bidding of the prosecution and that therefore the accused was prejudiced. I cannot, however, see how a Court is precluded from exercising its discretion under Section 540, Criminal P.C., merely because somebody asks it to do so. It is also argued that Section 540, Criminal P.C. is intended only for the benefit of the accused. I see no reason why Section 540, Criminal P.C., should be so limited. It is in the interests of justice that a guilty person should be convicted just as it is in the interests of justice that an innocent person should be acquitted. If the Court thinks that in order to give a just finding it is necessary to. examine a witness, then it could not be an improper exercise of the powers of the Court to summon that witness under Section 540, Criminal P.C., merely because the evidence supports the case of the prosecution and not that of the accused. It is possible to argue that the Public Prosecutor should have foreseen that there was a discrepancy between what P.W. 9 was going to speak to and the endorsements on the stamp papers, which the accused would be certain to exploit and that he should therefore have examined the stamp vendor to explain this discrepancy; but I do not think that this lack of foresight on the part of the prosecution should preclude the Court from examining the stamp vendor and clearing up the point. It is true that C.W. 1 not only gave evidence to explain the apparent discrepancy but contradicted D.W. 6 by saying that the Appu Nair whose name appeared on the reverse of the stamp papers was not this witness.
6. I am of opinion that the Court has power under Section 540, Criminal P.C., to examine a witness even to rebut defence evidence; but clearly those powers should be sparingly invoked for such a purpose. If a witness were examined under Section 540 to contradict defence witnesses, then the accused might, demand that further witnesses should be examined by the Court under the same section to contradict the prior witness examined and thus lead to that improper prolonging of a case so strongly condemned in the Allahabad case. If, in the present case, the learned Magistrate had examined C.W. 1 for the sole purpose of contradicting C.W. 6, 1 might have been inclined to hold that he had not, exercised his powers under Section 540 judicially; but the main object of his examination was undoubtedly to explain how the name of a person could appear as vendee on the back of a stamp paper when that person had not purchased it. I am unable to say therefore that the Magistrate did; not exercise his, discretion properly in examining C.W. 1. It has been said that no notice was given to the accused of the intention of the Court to examine C.W. 1. That is not legally necessary; but if an accused person is suddenly called upon to meet evidence which he does not know is going to be adduced, he may well be prejudiced. The order here was passed on 12th May and he was not examined until 26th May and, as can be seen from the cross-examination of that witness, the learned counsel for the accused was quite prepared to meet this additional evidence. On the appreciation of the evidence of the prosecution witnesses, the defence witnesses and the court witness, I see no reason to interfere. There are concurrent findings of fact in the Magistrate's Court and in the Sessions Court. The petition is accordingly dismissed.