Amal Krishna De, J.
1. Petitioner is the accused in Special Court Case No. 3 of 1973 in the 5th Additional Special Court, Calcutta. Prosecution has examined 13 witnesses in the case. The learned Judge has framed charge on two counts against him under Section 161, Indian Penal Code and Sections 5(1)(d) and 5(2) of the Prevention of Corruption Act, 1947. The petitioner has pleaded not guilty to the charge and has, forthwith, given a list of P. Ws. for their cross-examination. The learned Judge has recalled those P. Ws. for cross-examination. On 1-8-1973 P.W. 9) A. ,K. Das came to cour,t on being recalled, as wished by the accused, for his cross-examination. The Public' Prosecutor in charge of the case filed a petition before the learned Judge to allow bin* 'to further' examine' him 'to prove the authorship of the document' already collectively admitted in evidence as Ext, 6 on the evidence of P.W. 2, N. K. Dutta. Accused petitioner objected to the prayer. Public Prosecutor filed another petition 'to allow the said documents to be proved by P.W. 9 under Section 540 of the Code of Criminal Procedure', The petitioner also objected to it. The learned Judge by his order of that date allowed the prayer but without being spe-ific as to whether he was granting the sprayer in the first or the second petition of the prosecution. It is the propriety and legality of that order that is challena-ed in this Rule.
2. This is a ease being tried as a warrant case in accordance with the procedure in Chapter 21 of the Code of Criminal Procedure to be hereafter called the Code. The trial has passed through the stage of taking evidence under Section 252, framing of the charge under Section 254, recording of the plea of the accused under Section 255,* end is now at the stage after recall of P. Ws. for cross-examination, as wished by the accused, under Section 256. Cross-examination is not yet over. The question is whether a witness whose evidence has been taken under Section 252 and whose cross-examina-tion'is still not finished, can be again exa-mined-in-chief. Section 137 of the Indian Evidence Act states that the examination of witness by the party who calls him shall be called his examination-in-chief. Section 138 of the Act states that witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. After examination-in-chief is concluded, a witness is offered for cross-examination. Here the examination-in-chief of P.W. 9, A. K. Das ended before framing charge under Section 254. Prosecution cannot, therefore, 'further' examine him as that examination will have to be examination-in-chief, as laid down in Section 137 of the Indian Evidence Act. The prayer in the first petition of the Public Prosecutor was therefore, not entertainable.
3. Section 136 of the Indian Evidence Act lays down the order of production and examination of witnesses. It runs thus:
The order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and, in the absence of any such law, by the discretion of the 'Court.
In a warrant case the procedure for that purpose is laid down in Section 252 followed by Sections 256 and 257 of the Code of Criminal Procedure. No other procedure for further examination-in-chief of a witness by the prosecution can be fitted into it, Thfj learned Judge, if he has refused the first petition of, the Public Pro-.secutor for further examination of P.W. % A. K. Das on 1-8-73, has, therefore, been right.
4. The question, then, is whether any omission on the part of the prosecu- tion to 'fully' examine any witness of his due to remissness or inadvertence can be made good, and if so, how. The arms of law are long enough to provide tor a contingency of the above nature. The provisions in law are those in Section -540 ' of the Code of Criminal Procedure and Section 165 of the Indian Evidence Act, one being complementary of the other. These two sections between them confer jurisdiction on the Judge to act in aid of justice. Section 540 provides:
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 decisiom of the case.
The complementary provision of Section 165 of the Indian Evidence Act runs as follows:
The Judge may, in order t discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness...; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any, objection to any such question or order, nor without the leave of the Court, to cross-examine any witness, upon any answer given in reply to any such question:
5. The Judge may act under Section 165 of the Indian Evidence Act in order 'to discover or to obtain proper proof of relevant facts' asking 'any question' he pleases, in any form, 'at any time' of 'any witness'. Certain documents have already been marked Ext. 6 collectively on the evidence of P.W. 2,. N. K. Dutta. Junior Accounts Officer. P.W. 9, A, K. Das, the Accounts Officer, acquainted with handwriting of the accused who worked under him, would only be asked about the handwriting of the accused in three of the documents which have been collectively marked Ext. 6, _t prove formallv the authorship of certain writings by the accused. If the learned Judge is of opinion that those questions are to be put by him to prove formally the authorship of certain writings by a witness, present and available, then it will not cause any prejudice to the accused at >that stage because his cross-examination has not been started, or, at least,- conclud- _ ed. If he asks those Questions to P, W. 8 before the cross-examination after charge, this will clearly be under Section 165 of the Indian Evidence Act, and not under Section 540 of the Code. Mr. B. C. Boy, learned Advocate appearing for the petitioner submitted that the accused would be prejudiced in that case as he would not be able, without leave of the court,' to cross-examine him on the evidence that would come on record in the answers to the questions of the learned Judge. I will not think that the court will have refused leave, if asked for. to the accused to cross-examine that evidence. In any case, I will make it clear that the learned Judge will grant leave to the accused to eross-examine P.W. 9 in those respects, if the learned Judge puts any Questions to him. This is enough to dispose of the Rule.
6. But before parting with the case, however, I propose to deal with the submissions and counter*submissions of the. petitioners and the State Advocate on the point as to whether the learned Judge's order may be held to be good under Section 540 of the Code, presuming that it has been made by him thereunder.
6-A. Section 540 of the Code empowers a court
(a) at any Stage of any inquiry or trial or other proceeding under the Code.
(b) to examine or re-examine any witmess. It is obligatory on him if.
(1) the evidence of any person appears to him 'essential ,to the iust decision of the case.' It, however, remains 'permissive',, as is evident from the use of the word 'may' in the first part of the section, in other cases, the court may exercise the power under both the parts permissible and the obligatory parts. The stage in this instant case is the stage of cross-examination of P. Ws. but before the accused has been called upon to enter his defence and produce evidence as required by Sections 256 and 257 As the words used in the section are 'at any stage', it appears to me, that the court may make an order under Sec tion 540 even at the stage reached in the instant case.
7. It is pertinent here to refer to the case of Jamatraj Kewalji y. State of Maharashtra, reported in : 1968CriLJ231 , relied on by Mr. Roy, on behalf of the petitioner. Hidayat-ullah, J., as his Lordship then was, sneaking for the Court in that case observed:
Section 540 is intended to be wide as ihe repeated use of the word 'any' throughout its length clearly indicates. The section is in two parts. The first part Rives a discretionary power but the latter part is, mandatory, The use of the word 'may1 in the first part and of the word 'shall' in the second firmly establishes this difference. Under the first part, which is permissive, the court may act in one of three ways: (a) summon any person as a witness, (b) examine any person present in court although not summoned, and (c) recall or re-examine a witness already examined. The second part is obligatory and compels the Court to act in these-three ways or any one of them, if the-just decision of the case demands it. As the section stands there is no limitation, on the power of the Court arising from the stage to which the trial may have reached, provided the court is bona fide of the opinion that for the just decision, of the case,' the step must be taken. It is clear that the requirement of just'decision of the case does not limit the actions to something in the interest of the accused only. The action may equally benefit ' the prosecution. There are, hojyv-ever, two aspetts of the matter whichi raust be distinctly kept apart. The first is that the prosecution cannot be allowed to rebut the defence evidence unless the prisoner brings forward something: suddenly and unexpectedly.
This decision has in a way overruled the decision in the case of Natabar Ghose v. Adya Nath Biswas, reported in AIR 1923 Cal 690 : (24 Cri LJ 957), also referred to by Mr. Roy. It ia thus seen that the ground on which the' Court may act under the second part of Section 540 is one, i.e., 'essential to the just decision.' But those under the first-part are not limited to that only. The-only thing is that the Court has to form', a bona fide opinion as to the necessity of' an order under Section 540. What is sufficient for that necessity cannot be enumerated with any preciseness or exhaustively. That will depend on the facts and circumstances of each case. I am of opinion on the facts of the instant case that, the omission has bepn to ask certain questions to P.W. 9 in the earlier stage and that it was due to inadvertence and that the examination of P.W. 9 for putting those questions is necessary for iust decision. Section 540 is not, however, attracted to j the facts of the present case, as P.W. 9, A. K. Das is not one of the persons in (a) or (b) or (c) in paragraph 7. He is a witness'who has not been, discharged and is under cross-examination on recall at the wish of the accused. He is present in Court, but on being summoned. The learned Judge, therefore, could not have made an order under Secti&n; 540 of the Code in respect of this witness as he is still a witness of a party and whose cross-examination has not been completed. He is a witness partly examined. If the order of the learned Judge is taken to have been made under Section 540 of the Code of Criminal Procedure, that order shall stand set aside by this order.
Mr. Roy argued that prejudice was being caused to the accused as P.W. 9 had been partly cross-examined before-charge and his examination under Section 540 would open up an avenue for the prosecution to bring on record further other evidence by way of cross-examination, I see no force in this contention. His evidence as to his acquaintance with the accused's handwriting has not been challenged before charge by any question. It is yet an open matter. When a court examines a witness, it is for the court to say after such questioning as to which of the parties will be permitted to ask questions first and to what extent. When a witness examined by the Court is questioned by the parties, it cannot strictly [be said that he is cross-examined. For the cross-examination is examination of a witness by the adverse party. When a court calls a witness, he does not become a witness called by any party to the litigation. In this view of the matter, the submission of. Mr. Roy that the accused is likely to be prejudiced, in the way he submits, has no substance.
Ordinarily, a court may intervene under Section 540 after close of evidence, and not before that, for it may not be possible for the court to form a bona fide opinion as to the necessity of calling a witness before evidence is closed on the side of the prosecution at least. There is, nothing, however, in the language of Section 540 to say that the court cannot make an order under Section 540 even before the prosecution evidence is closed. But a witness, whose examination, cross-examination and re-examination is not over, i.e., a witness not discharged after full examination,' cannot be called under Section 540, whatever the stage. In such a situation, the court may, however, act under Section 165 of the Indian Evidence , Act, if necessity, for ends of justice, arises. This disposes of all the contentions made in this case.
In the result, I dispose of the Rule as follows:
The learned Judge will ask questions acting under Section 165 of the Indian Evidence Act, he pleases to Sri A. K. Das P.W. 9 before calling upon the accused to cross-examine him and he will grant leave to him to cross-examine the witness, also in respect of the answers that the witness may give in answer to his questions.
Let the records go down to the learned Judge at once.