- (1.) THIS revision application raises two important questions of law: (1) Whether the trial court is competent to recall a prosecution witness to give evidence on a point on which he has already deposed earlier ? and (2) Whether the trial court can look into the police diary in order to ascertain the time and date of the medical examination of the injured ?
(2.) THE facts giving rise to the present revision application are in a very short compass. Dr. Chetan Prakash (PW. 3) was examined in the present case by the trial court. According to his statement the time of medical examination of the injuries was two hours earlier to the time and the date of occurrence. THE trial court while considering the case for giving judgement found that the time and date of the medical examination of the injured was not given in Ex. P. 1 and Ex. P. 2 and in place of that time of incident was given. On this the court asked the Assistant Public Prosecutor to call for the police diary. From the police diary the court found that on March 4, 1975, the day on which the incident is alleged to have taken place,, the doctor was out of station to attend some camp. It was mentioned that on account of this the medical examination could not be conducted and it would be now conducted to-morrow. A letter was also sent by the police to the doctor at Bhadra to conduct medical examination and this letter is dated March 5, 1975. On the basis of the above the court was of the opinion that the doctor should be re-examined by recalling him in the interest of justice. The accused has challenged this on the ground that after the entire evidence has been adduced by both the parties and the case has been kept for announcement of judgment, the court exceeded its jurisdiction in recalling the doctor under the inherent powers of the court. Reliance was placed on a judgment of this Court: State vs. S. B. Sexena (l ). The counsel for the petitioners drew my attention to the following paragraph extracted from the judgment in Rex vs. S. Bora Harris (2) wherein Avory J. , observed as follows: " A Judge at a criminal trial has the right to call a witness not called by either the orosecution or the defence, without the consent of either the prosecution or the defence, if in his opinion that course is necessary in the interests of justice, but in order that in justice should not be done to an accused person a Judge should not call a witness in a criminal trail after the case for the defence is closed except in a case where a matter arises eximproviso, which no human ingenuity can for see, on the part of the prisoner. " In para 6 of the judgment of the Rajasthan High Court, the Court has observed as follows: " 6. In our criminal jurisprudence staturory law, as laid down in s. 540, Cr. P. C. confers extensive powers upon the court to summon or reexamine or recall any witness. This has been left to the discretion of the Court. The second part of S. 540, Cr. P. C. compels the court to summon and examine or recall and re-examine a witness if it is essential for it to do so for the just decision of the case. In the present case the Court of Special Judge, Jaipur, was not moved to exercise powers under the first part of S. 540 Cr. P. C. Moreover, the exercise of such power has been left, at the discretion of the court. It is not meant to be used for the purpose of enabling the prosecution to fill up any lacuna, in its evidence. As for the second part the court did not observe that to summon and examine or to recall and re-examine witnesses was necessaru for the just decision of the case. The Court on the other hand said: " The prosecution by this application wants to take second inning to plug the loopholes of its case and lapses of cross-examination after having heard the defence case. It is far from bonafide. " Mr. Bhagwati Prasad appearing for the petitioners after having cited the above case and referred to it at the admission stage, very frankly and fairly conceded today that this paragraph of the king Bench judgment and the judgment of Avory J. , has been adversely commented upon by the Supreme Court in Jamatraj vs. State of Maharashtra (3 ). Hidayatullah J. , as he then was in para 13 observed as follows: " 13. It is not necessary to refer to the case cited on either side. they illustrate the application of the general principle spoken to by Avory J. , in the extract from dora Harris case 1972-2 Kb 587 and the condition laid down in (1840) 4 St. tr (NS) 85. Dora Harris 1927-2 KB 587 and (1840 4 St. Tr. (NS) 85 cases involved rebuttal of the defence evidence. In neither case was there any unexpected move by the prisoner and the evidence was therefore, wrongly admitted. It is difficult to limit the power under our Code to cases which no human ingenity could foresee, in the course of the defence. Our Code does not make this a condition of the exercise of the power and it is not right to embark on judicial legislation. Cases that go that far are of course not quite right. Indeed they could be decided on fact because it can always be seen whether the new matter is strictly necessary for a just decision and not intended to give an unfair advantage to one of the rival sides. Even in England where the rule in Dora Harris case, 1927-2 KB 587 obtains, the powers of the Court have not been held to be wrongly exercised when fresh evidence has been let in for a just decision. In Willian Sullivan, (1922) 16 Cr. App. 112, rebutting evidence was held to be called properly when the accused put forward a suggestion which could not have been foreseen and in John Mekenna, (1965) 40 Cr. App. Rep. 65 it was held that a judge had complete discretion whether a witness should be called and that the Court of Criminal Appeal would not interfere unless it was made to appear that injustice had been caused. In that case (like the one here) the defence had closed the case and the accused had submitted that there was no case and the accused had submitted that there was no case to go the jury. (14) It would appear that in our criminal jurisdiction, statutory law confers power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in a court or to recall a witness already examined, and makes this the duty and obligation of the Court provided the just decision of the case demands it. In other words, where the Court exercises the power under second part, the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the Court is right in thinking that the new evidence is needed by it for a just decision of the case. It the court has acted without the requirements of a just decision, the action is open to criticism but if the court's action is supportable as being in aid of a just decision the action cannot be regarded as exceeding the jurisdiction. " In this very case it has been held that Chapter 21 of Cr. P. C. does not restrict the powers of Criminal Court under S. 540, Section 540, Criminal P. C, and section 165 Evidence Act, between them confer a wide discretion on the court to act as the exigencies of justice require. Section 540 is intended to be wide as the repeated use of the word "any" throughout its length clearly indicates.
(3.) THE Supreme Court has held in this case that 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 bonafidely 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 somthing in the interest of the accused only. THE action may equally benefit the prosecution. In view of the above state of law, Mr. Bhagwati Prasad counsel for the accused-petitioners could not press his earlier submission any further and conceded that in view of she above law as laid down by the Supreme Court no exception can be taken to the order of the lower court recalling the doctor as a court witness. It may be pointed out here that in another case of this Court: State Vs. Kedarnath (4) this Court has queshed an order of the trial court rejecting the prayer for recalling a witness. It was pointed out that even though the prosecution committed a mistake in not getting the 'chappals' identified by P. W. Harsh Wardhan, but it would be in the interest of justice if the witness is recalled. I am of the opinion that every possible step should be taken by the Court to ascertain the truth. In the great pursuit of finding out the truth, the technicalities of the procedure should not come in the way unless it is felt that any of the parties would be seriously prejudiced and the injury caused to it would be irremediable. The game of "hide and seek" on the pretest of the technicali-ties, if adopted by the prosecution or the defence is to be deprecated. ;