TaxTMI 
TaxTMI 
1991 (2) TMI 142
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....resulted in the seizure of some gold Lagadis bearing foreign marks, primary gold, gold ornaments and silver bricks, coins etc., to the value of about Rs. 8,48,422/-. During the said raid a sum of Rs. 79,000/- was also seized. In respect of this incident, the Assistant Collector of Customs filed two separate complaints on 26-11-1973 against the appellant in the court of the Judicial Magistrate, First Class, Anjar, being criminal cases Nos. 929 and 930 of 1973 for offences punishable (1) under the provisions of the Customs Act, 1962 and (2) under the Gold (Control) Act, 1968. After examination of the prosecution as well as the defence witnesses and recording of the statements of the appellant under Section 342 of the old Code of Criminal Procedure (hereinafter referred to as the `Code') arguments were advanced on behalf of the appellant/accused. The prosecution at this stage before commencing its arguments filed two applications in both the cases under Section 540 of the old Code (corresponding to Section 311 of the new Code) requesting the Trial Court to recall Mr. Mirchandani (the Seizing Officer) for further examination and to issue summons to two more witnesses namely, Mr. K.K. D....
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....rable length of time and the defence argument was concluded and that the High Court, by the impugned order has permitted the prosecution to bolster up its case by filling up the lacuna and plugging the loopholes which if carried out would be detrimental and prejudicial to the appellant. 5.The next legal submission made on behalf of the appellant is that the entertainment of the second revision by the High Court is in violation of sub-sections (2) and (3) of Section 397 of the new Code since the order passed by the Magistrate was an interlocutory order and that even assuming that it was not so, the second revision by the same affected party is not entertainable. 6.Before adverting to the arguments advanced on behalf of the appellant, we would examine in general the scope and intent of Section 540 of the old Code (corresponding to Section 311 of the new Code). 7.Section 540 was found in Chapter XLVI of the old Code of 1898 under the heading "Miscellaneous". But the present corresponding Section 311 of the new Code is found among other Sections in Chapter XXIV under the heading "General Provisions as to Enquiries and Trials". Section 311 is an almost verbatim reproduction of Sectio....
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....t arises for consideration is whether the presiding officer of a Court should simply sit as a mere umpire at a contest between two parties and declare at the end of the combat who has won and who has lost or is there not any legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice? It is a well accepted and settled principle that a Court must discharge its statutory functions - whether discretionary or obligatory - according to law in dispensing justice because it is the duty of a Court not only to do justice but also to ensure that justice is being done. In order to enable the Court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the new Code) are enacted whereunder any Court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined who are expected to be able to....
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....logous to the above provisions of the Code of Criminal Procedure there are various provisions in the Civil Procedure Code also enabling the civil Court to summon witnesses and examine them in the interest of justice. Under Order X Rule 2 of the Civil Procedure Code, the Court at the first hearing of the suit or at any subsequent hearing may examine any party appearing in person or present in Court or any person able to answer any material questions relating to the suit by whom such party or his pleader is accompanied. Under Order X Rule 14 the Court may of its own motion summon as a witness any person including the party to the suit for examination and the said Rule is under the caption "Court may of its own accord summon as witnesses strangers to suit" and Order XVIII Rule 17 empowers the Court to recall any witness who has been examined and may subject to Law of Evidence for the time being in force put such questions to him as it thinks fit. The powers of the Court under this Rule 17 are discretionary and very wide. 14.Besides the above specific provisions under the Cr. P.C. and C.P.C. empowering the criminal and civil courts as the case may be, to summon and examine witnesses, ....
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....o 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 given an unfair advantage to one of the rival sides ...................... It would appear that in our criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in 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 the 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. If 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." 17.The next important question is whether Section 540 gives the court carte-blanche....
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....ther its power under this section should be exercised or not. But if it is satisfied that the evidence of any person not examined or further evidence of any person already examined is essential to the just decision of the case, it is its duty to take such evidence. The exercise of the power conferred by Section 540 is conditioned by the requirement that such exercise would be essential to the just decision of the case." 20.At the risk of repetition it may be said that Section 540 allows the court to invoke its inherent power at any stage as long as the court retains seisin of the criminal proceeding, without qualifying any limitation or prohibition. Needless to say that an enquiry or trial in a criminal proceeding comes to an end or reaches its finality when the order or judgment is pronounced and until then the court has power to use this section. The answer to the question like the one that has arisen in the present case is whether the court would be justified in exercising its power under Section 540 is found in Kewalji's case (albeit). In that case the appellant was prosecuted on two counts under Section 135(a) and (b) of the Customs Act. The appellant did not lead any evidenc....
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.... of criminal court under Section 540. 23.In Masalti v. State of U.P. - A.I.R. 1965 S.C. 202 wherein the defence did not opt to examine some witnesses who have been left out by the prosecution on the bona fide belief that those witnesses has been won over and the court also after due deliberation refused to exercise its power under Section 540; this Court while examining a submission that the Trial Court should have exercised its power under Section 540 and examined those witnesses expressed its opinion that "that is one aspect of the matter which we have to take into account" - that is in considering whether the accused were prejudiced or not. 24.It has been held by this Court in Rajeswar Prosad Misra v. State of West Bengal & Anr. - 1966 (1) S.C.R. 178 while dealing with the ample power and jurisdiction of the court in taking additional evidence as follows : "Additional evidence may be necessary for a variety of reasons which it is hardly necessary (even if it was possible) to list here. We do not propose to do what the Legislature has refrained from doing, namely, to control discretion of the appellate Court to certain stated circumstances. It may, however, be said that additi....
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....s that the statute has armed the Court with all the powers to do full justice between the parties as full justice cannot be done until both the parties are properly heard the condition of giving an opportunity to the accused to rebut any fresh evidence sought to be adduced against him either at the trial or the appellate stage appear to us to be implicit under Section 540 of the Cr. P.C." 28.See also Kewalji's case (cited above). This was the view taken by various High Courts such as in Channu Lal v. R. - A.I.R. 1949 All. 692; Rengaswami Naicker v. Muruga Naicker - A.I.R. 1954 Mad. 169; Shugan Chand v. Emperor - A.I.R. 1925 Lah. 531 and The Queen v. Assanoollah - 13 S.W.R. (Crl.) 15. 29.The views expressed in the above judgment of the various High Courts have been approved by this Court in Rameshwar Dayal's case. We are in full agreement with the above view of Fazal Ali, J. and hold that whenever any additional evidence is examined or fresh evidence is admitted against the accused, it is absolutely necessary in the interest of justice that the accused should be afforded a fair and reasonable opportunity to rebut that evidence brought on record against him. 30.With this legal bac....
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.... is elicited from the same witness in the cross examination that the gold ornaments were seized since the seizing authority doubted that they are smuggled gold and procured by contravening the Gold (Control) Act. It is seen from the evidence of PW-3 that he and others inclusive of Superintendent Mirchandani went to the house of the appellant and they seized the gold ornaments Dhalia, that is, primary gold under Panchnama and search list Exts. 24 and 25. Therefore, the appellant's grievance that he has been taken by surprise on the request of the prosecution for taking fresh evidence; that the evidence sought to be obtained is only for filling up the lacuna and the judgment, impugned is prejudicial to him cannot be countenanced. Of the three witnesses, permitted to be summoned and examined on the side of the Union of India, the Mint Master is only an assayer. In our considered opinion, the facts and circumstances of the case require the examination of these three witnesses for a just decision of the case as held by the High Court. 31.In the light of the proposition of law which we have derived in the preceding portion of the judgment there is no illegality in summoning the witnesse....