B.R.James, J. - (1.) This revision raises two important questions with, regard to the scope of Section 540 of the Code of Criminal Procedure. The facts are briefly these. Ramjeet and others were tried before the Sessions Judge of Jaunpur for riot, murder and allied offences. In accordance with the recent amendment in the Code, the trial was by the Judge sitting alone. After the entire evidence had been recorded, arguments were heard and concluded on the 10th November, 1956, and the learned Judge fixed the 21st November, 1956 for the pronouncement of judgment. But when he sat down to prepare the judgment and gave a thorough consideration to the evidence on the record it appeared to him that for the just decision of the case the evidence of certain persons who had not been examined hitherto was essential. Hence on the 21st November the date originally fixed for the delivery of judgment he decided to summon and examine those persons under Section 540, Cr. P. C. The defence counsel objected that this could not be done under that provision of the Code, whereas the Public Prosecutor argued the reverse, and both learned counsel cited decisions in support of their respective view points. The learned Judge after considering the rival arguments held that Section 540 gave him jurisdiction to act in the manner that he had done, and accordingly he re-affirmed his order for the examination of the witnesses concerned. Aggrieved by that order the accused persons came to this Court in Revision, and before the learned single Judge the contentions advanced before the Sessions Judge were repeated. Finding that there was a conflict of judicial authority on the controversial point the learned Judge referred the case to a Division Bench. It is now before us for decision.
(2.) Two points have been raised on behalf of the accused applicants: first, that the examination of fresh evidence was tantamount to making good lacunae in the prosecution case hence was not justified under the provisions of Section 540 Cr. P. C.; second, that the trial terminated with the conclusion of the arguments, hence under that section the Court had no power to call fresh evidence.
(3.) The contention that Section 540 of the Code cannot be used for filling loopholes left by the parties is not infrequently found contained in judgments of subordinate Courts and in submissions made from the Bar, but is nonetheless a misconceived one. Section 540 is in 'these words:-- "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". The section is manifestly in two parts, and what I should like to emphasise is that whereas the word used in the first part is "may", the second part uses "shall". In consequence, the first part gives purely discretionary authority to the criminal Court and enables it at any stage of an enquiry, trial or other proceeding under the Code (a) to summon anyone as a witness, or (b) to examine any person present in Court, or (c) to recall and re-examine any person whose evidence has already been recorded: on the other hand, the second part is mandatory, and compels the Court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case. The discretion given by the first part is very wide and its very width requires a correspond-ling caution on the part of the Court. But the second part does not allow for any discretion; it binds the Court to examine fresh evidence, and the only condition prescribed is that this evidence must be essential to the just decision of the case. Whether the new evidence is essential or not must of course depend on the facts of each case and has to be determined by the presiding Judge.;