IN RE: K K NARAYANAN NAMBIAR Vs. STATE

JUDGEMENT

(1.) The petitioner was convicted under Section 409, Indian Penal Code, of committing criminal breach of trust by dishonestly misappropriating a sum Rs. 118-15-0 entrusted to him in his capacity as Head Clerk, District Court, North Malabar; and the offence is said to have been committed between 2 December, 1940 and the 17 of that month. His appeal was dismissed, the conviction and sentence being affirmed. The principal question which arises in this petition is whether the learned Magistrate, purporting to act under Section 540, Criminal P.C., exercised his discretion improperly in admitting the evidence of a person who was examined as C.W. 1. The prosecution let in evidence through P.Ws. 8 and 9 that on 14th December 1940, the petitioner took a sum of Rs. 2 out of the bag in which he kept his money as Head Clerk and gave it to P.W. 9 to purchase seven stamp papers, which were subsequently handed over to P.W. 8. Formal evidence was given to this effect and there was not much cross-examination on this point. The reverse sides of the stamp papers however show that six of them wore purchased in the name of one Appu Nair and one in the name of a still different person. There was therefore a possibility that the Court might be unable to accept the evidence ofP.W. 9 in the face of the endorsements of the stamp vendor. The seventh paper was dated 4 December 1940, ten days before P.W. 9 is said to have made the purchase. Not unnaturally, the accused exploited these endorsements and examined a man who bore the name of Appu Nair and who deposed that he had purchased these papers. Faced with the possibility that P.Ws. 8 and 9 might be disbelieved because of an apparent discrepancy which he knew could be easily explained, the public prosecutor filed an application in the Magistrate's Court asking him to exercise his discretion under Section 540, Criminal P.C. and examine the stamp vendor as a witness. He did so; and the stamp vendor explained how it was possible for a person to purchase a stamp paper and yet for one to find some other name on the reverse. He also deposed that the Appu Nair whose name appeared on the reverse of six of the stamp papers was not D.W. 6, but an Appu Nair residing in an entirely different village to that in which D.W. 6 was living.

(2.) As will be seen from the wording of Section 540, Criminal P.C., it is extremely wide in its provisions and enables a Magistrate at any stage of any proceeding to examine any person as a witness; and, where it is essential to the just decision of the case, he is bound to do so. The very width of the powers given to the Magistrate require, however, a corresponding caution in using these powers. In the many cases cited by Mr. Srinivasa Ayyangar on behalf of the petitioner, various views have been expressed with regard to the power of the Court to examine witnesses after the defence case has been closed; but, in all those cases, it was obvious that the power had been misused. In Rex. V/s. Dora Harris (1927) 2 K.B. 587 the Recorder permitted the examination as a court witness of a co- accused who had throughout the trial been standing in the dock by the side of the accused against whom this evidence was let in and who was admittedly an accomplice. Avory J. who delivered the judgment of the Court, quotes at P. 594 the rule laid down by Tindall J. in Rex. V/s. Frost (1839) 9 C. & P. 129. There is no doubt that the general rule is that where the Crown begins its case like a plaintiff in a civil suit, they cannot afterwards support their case by calling fresh witnesses, because they are met by certain evidence that contradicts it. They stand or fall by the evidence they have given. They must close their case before the defence begins, but if any matter arises ex improviso, which no human ingenuity can foresee, on the part of a defendant in a civil suit, or a prisoner in a criminal case, there seems to me no reason why that matter which so arose ex improviso may not be answered by contrary evidence on the part of the Crown.

(3.) However, in expressing the considered opinion of the Bench, Avory J. himself lays no restricting rule. He says: In the circumstances, without laying down that in no case can an additional witness be called by the Judge at the close of the trial after the case for the defence has been closed, we are of opinion that in this particular case the course that was adopted was irregular and was calculated to do injustice to the appellant.