I.S.Mathur, J. - (1.) THIS petition, under Section 482 Cr.P.C. is directed against the order dated 1.9.1992, passed by Addl. City Magistrate IV (Trans Gomti), Lucknow in case No. 39/53/79/133 of 1985 (now 3/92) under Section 145 Cr.P.C. permitting the opp. party No. 1 to lead evidence. It appears that in proceedings under Section 145 Cr.P.C., evidence of the petitioners was recorded and the evidence of opposite party No. 1 was closed on account of his absence. An application for setting aside the order for closing the evidence was made by opposite party No. 1 praying that he be permitted to lead his evidence. This application was however, again rejected by order dated 6.9.1991 on account of absence of the opposite party No. 1. Another application was moved by the opposite party No. 2 on 13.9.1991. This application has been allowed by the learned Magistrate on payment of Rs. 250/ - as costs with the observation that refusing the prayer of the opposite party No. 1 may cause irreparable loss to him and the petitioners can be compensated with costs.
(2.) I have heard the learned counsel for the parties and have gone through the record and, in my opinion, the petition is devoid of merit. It is settled law that the powers of the court to examine any witness at any stage of the proceedings are quite wide. This is obvious from Section 165 of the Indian Evidence Act as also Section 311 Cr.P.C. According to Section 165 of the Indian Evidence Act the Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant or Section 311 of the Code of Criminal Procedure provides that any Court may, at any stage of any inquiry, trial or other proceedings under this Code, summon any person as a witness or examine any person in attendance though not summoned as a witness, or recall and reexamine 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 to be essential in just decision of the case. In Jamatraj Kewalji Govani v. State of Maharashtra : AIR 1968 SC 178, the prosecution and defence evidence had closed. Thereafter a written statement was filed on behalf of the accused stating that no offence had been disclosed against him in as much as Section 135 of the Act provided that the person concerned should have had reason to believe that the contraband goods had not been custom . It was further stated that, under Section 123 of the Act, the burden would have been on the accused to prove that the goods had been custom provided the goods had been seized under the Act in the reasonable belief that they were smuggled goods but no witness had deposed to it. The following day the prosecution applied for the examination of Mr. Datta, Inspector of Customs, Bombay as a court -witness in the interest of justice. The application was opposed by the accused. The Magistrate, however, ordered examination of Mr. Datta under Section 540 of the Code of Criminal Procedure (1898). Mr. Datta stated that he had seized the watches in the reasonable belief that they were smuggled. The accused was thereafter examined and he still stated that he will lead no defence. The Magistrate after hearing the arguments, convicted the accused. The appeal against the conviction was dismissed. The matter was taken to the Supreme Court. It was contended before the Supreme Court that the Magistrate should not have allowed the prosecution to fill in the lacuna. Hon'ble Supreme Court rejected this contention and held, with reference to Section 165 of the Evidence Act and Section 540 of the Code of Criminal Procedure (1898) (Section 311 of the 1973 Code) that the Courts had ample powers under these two sections to act in aid of justice. The Supreme Court observed: Section 540 is intended to be wide as the repeated use of the word 'any' throughout its length clearly indicates. The section is in two parts. The first part gives a discretionary power but the latter part is mandatory. The use of the word "may" 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 bonafide 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 action to something in the interest of the accused only. The action may equally benefit the prosecution. There are, however, two aspects of the matter which must 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.
(3.) IN Om Prakash Sharma v. Surendra Kumar and others : 1974 (11) ACC 42 this Court has held that a Magistrate is not precluded from examining certain witnesses under Section 540 under the Code of Criminal Procedure (1898) at a later stage.;