A.N. Mulla, J. - (1.) This is an application of revision filed by Saghir Husain and Wasi Husain who are being prosecuted under Section 5 (2) of the Prevention of Corruption Act before Sri A. D. Bhattacharya, Special Judge, Sitapur.
(2.) It appears that after the evidence was closed on 12-6-1957, the prosecution wanted to produce Sri A. M. Shah, S. P. Sitapur as a witness in the case. The defence objected to the examination of Sri A. M. Shah and contended that it is not open to the prosecution to examine a witness to fill in a lacuna in the prosecution case at such a late stage. Sri Bhattacharya then passed an order by which he proposed to examine Sri A. M. Shah as a witness under Section 540 of the Code of Criminal Procedure. The applicants felt aggrieved against this decision of the Special Judge and they have come up in revision before this Court with the prayer that the order of the Special Judge, D/-12-6-1957, proposing to examine Sri Shah under Section 540 of the Code of Criminal Procedure should be set aside.
(3.) The learned counsel for the applicants has relied upon a decision of the Madras High Court in support of this contention. This decision is reported in In re, N. Krishna Swamy, 1956 Cr. LJ 1207 : (AIR 1956 Mad 592) (A). It was held by a single Judge of the Madras High Court in this case that the Court can examine a witness under Section 540 only "if any matter arises ex improviso which no human ingenuity can foresee". It appears to me that the learned Judge who gave this decision went too far in restricting the powers of the Court under Section 540 of the Code of Criminal Procedure. The powers should be interpreted by the words used in the section itself. All that Section 540 requires is that the Court shall examine any person if his evidence appears to it essential to the just decision of the case. The only question, therefore, before the Special Judge was whether the evidence of Sri A. M. Shah is essential or not. I have read the order of the Special Judge and I find that he had made no observation on this point. The Special Judge should definitely find that the evidence of Sri Shah is essential before he can proceed to examine him as a witness.;