Holding

The High Court's order permitting the prosecution to recall and summon witnesses under Section 311 was within the court's jurisdiction and did not violate the principles of natural justice.

Summary

The appellant's premises were raided by Customs officials, leading to the seizure of gold, silver, and cash and the filing of two criminal complaints under the Customs Act, 1962 and the Gold Control Act, 1968. After the trial magistrate closed evidence, the prosecution sought, under Section 540 of the old Code (now Section 311 of the CrPC), to recall the seizing officer and summon two additional witnesses; the magistrate rejected the applications and the rejection was upheld on revision. The Union of India and the State of Gujarat filed revision applications before the Gujarat High Court, which allowed the summons and recall of the three witnesses, prompting the appellant to appeal to the Supreme Court. The key issues were whether the High Court erred in permitting the prosecution to introduce fresh evidence after the defence had closed, whether the applications were interlocutory, and whether a second revision was barred by Section 397(3) of the CrPC. The Supreme Court held that Section 311 confers a wide but not unfettered power to summon or recall witnesses when essential for a just decision, and that the High Court's order was not illegal; the appeals were dismissed, with a direction that the trial court must allow the accused a fair opportunity to cross‑examine the newly summoned witnesses.

Issues considered

The propriety of the High Court allowing the prosecution to recall and summon witnesses under Section 311 after the defence had closed.
Whether the trial magistrate's order rejecting the applications was an interlocutory order and thus subject to revision under Section 397.
Whether a second revision by the same party is barred by Section 397(3) of the Criminal Procedure Code.
The scope and limits of the court's power under Section 311/540 to admit fresh evidence and the requirement to give the accused a chance to rebut such evidence.

Legislation cited

Code of Criminal Procedure, 1973s. 311, s. 313, s. 397, s. 484
Criminal Procedure Code (old)s. 540
Customs Acts. 1962
Gold Control Acts. 1968
Indian Evidence Act, 1872s. 114, s. 165

Subjects

Section 311Section 540witness summoningrevision jurisdictionfair trialnatural justicecustoms seizuregold controlevidence admissibility

Judgment

MOHAN LAL SHAMLAL SONI
A
V.
UNION OF INDIA AND ANOTHER

FEBRUARY 22, 1991

B [S. RATNAVEL PANDIAN AND K. JAYACHANDRA
REDDY, JJ]

Code of Criminal Procedure 1973-Section 311 (Corresponding-~
to section 540 of the old code)-Summoning of person as witness-
Recall or re-examine of such person-Jurisdiction of Court-To be
dictated by exigency of situation and fair play.
c
Appellant's business and residential premises were raided by the
Customs Department as a result whereof gold ingots with foreign I
marks, gold ornaments silver bricks, coins and a cash of Rs. 79,000 was ,
seized. The Assistant Collector of Customs filed two separate comp- y---~
D laints relating to the said incident against the appellant before the Judi-
cial magistrate, one for violating the provisions of Customs Act, 1962
and the other under the Gold Control Act, 1968. In the trial, after the
close of evidence by both sides, prosecution as also defence, arguments
were advanced on behalf of the accused appellant. The prosecution at
that stage before commencing its arguments filed two applications in
E both the cases, under Section 540 of the Old Code (corresponding to~
section 311 of the new Code) requesting the trial court to recall one
witness viz., the Seizing officer, and issue summons to two more witD.es-

-
ses for examination either as prosecution witnesses or as court witnes-
ses. The trial magistrate rejected both the applications and the revision
petitions preferred by the respondents against that order failed before
F the Sessfons Judge. The Union of India thereupon preferred two revi-
sion applications before the High Court. The State of Gujarat also
preferred separate revision applications before the High Court. The /~ . .
High Court allowed the revision petitions and directed examination of
the three witnesses sought to be summoned. Being aggrieved the appel-
lant has filed these appeals after obtaining special leave against the
G decision of the High Court, in the revision appUcations filed by the
Union of India. No appeal has been filed against the order passed by the
High Court in the revision applications filed before it, by the State of
Gujarat. The main contention of the appellant is that the High Court ,.,,/ .....
erred in allowing the second revision application in view of the provi- \
sions of section 397(3) of the new Code thus permitting the prosecution
H to fill up the lacuna and plug the loopholes in its case which is prejudi-
cial to the appellant.
712
M.L.S. SONI v. U.0.1. 713

Dismissing the appeals, this Court,
A
HELD: Though Section 540 (Section 311 of the new Code) is, in
the widest possible terms and calls for no limitation, either with regard
to the stage at which the powers of the court should be exercised, or
with regard to the manner in which they should be exercised, _that
power is circumscribed by the principle that underlines section 540, B
,.lnamely, evidence to be obtained should appear to the court essential to
~ a -just decision of the case by getting at the truth by all lawful means.
The aid of the section should be invoked only with the object of disco-
vering relevant facts or obtaining proper proof of such facts for a just
~ decision of the case and it must be used judicially and not capricicously
- or arbitrarily. Due care should be taken by the court while exercising
power under this section and it must not be used for filling up the c
lacuna left by the prosecution or by the defence or to the disadvantage
---f" 6f the accused or to cause serious prejudice to the defence of the accused
or to give an unfair advantage to the rival side and further the addi-
tional evidence should not be 1·eceived as a disguise for a retrial or to
change the nature of the case against either of the parties. [721B-E] D

Whenever any additional evidence is examined or fresh evidence
is admitted against the accused, it is absolutely necessary in the
l interests of justice that the accused should be afforded a fair and
/"reasonable opportunity to rebut that evidence brought on record
against him. [725E] E

The Criminal court has ample power to summon any person as a
witness or recall and re-examine any such person even if the evidence on
both sides is closed and the jurisdiction of the court and must obviously
be dictated by exigency of the situation, and fair-play and good sense
• ~pear to be the only safe guides and that only the requirements of F
- justice command the examination of any person which would depend on
the facts and circumstances of each case. [724C-D]

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. [726G] G

~ Jamatraj Kewalji Govni v. State of Maharashtra, [1967] 3 SCR
415; Rameshwar Dayal v. State of U.P., [1978] 2 SCC 518; State of
West Bengal v. Tulsidas Mundhra, [1963] 2 S.C.J. 204 at 207; Masalti
v. State of U. P. , AIR 1965 S.C. 202; Rajeshwar Pros ad Misra v. State of
West Bengal and Anr., [1966] 2 S.C.R. 178; R.B. Mithani v. H
714 SUPREME COURT REPORTS [ 1991] 1 S.C.R.

Maharashtra, AIR 1971 S.C. 1630; Channu Lal v. R., AIR 1949 AD--.,---
A 692; Rengaswami Naicker v. Muruga Naicker, AIR 1954 Mad 169; .:
Shugan Chand v. Emperor, AIR 1925 Lah 531 and The Queen v. .
Assanoolah, 13 SWR (Crl.) 15, referred to.

Mir Mohd. Omar and Others v. State of West Bengal, [1989] 4
1
B S.CC 436, distinguished.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal~-
Nos. 4 & 5 of 1979.

From the Judgment and Order dated 21.3. 1978 of the Gujarat
c
High Court in Criminal Revision Application Nos. 98 and 97 of 1978.

S.K. Kulkarni and P.C. Kapur (NP) for the Appellant.
-
Arun Jetley, Additional Solicitor General, Ms. Indu Malhotra, Y
M.N. Shroff, P. Parmeshwaran, Ms. A. Subhashini, Ms. Ayesha
D Karim and P.K. Mullick for the Respondents.

The Judgment of the Court was delivered by

S. RATNAVEL PANDIAN J. These criminal appeals by special
leave granted under Article 136 of the Constitution of India are prefer--~
.E red by the appellant questioning the correctness of the judgment of the ·
Gujarat High Court in Criminal Revision Application Nos. 98 and 97 I
of 1978 whereby the High Court set aside the judgment and orders 1
dated 2. 1.1978 of the Sessions Judge, Kutch at Bhuj made in Criminal,
Revision Application Nos. 46 and 45 of 1976 confirming the orders'
-
dated 19.6. 76 passed by the Judicial Magistrate, First Class, Kutch in
F Application Exh. Nos. 94 and 98 in Criminal Case Nos. 929 and 930 of·
1973 respectively. The factual matrix that have relevance to the que~ •
tions; raised and canvassed at the hearing may be briefly stated.

A raid conducted by the officers of the Customs Department in
the business-cum-residential premises of the appellant on 17.9.1971
G resulted iO 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 1-
H cases Nos. 929 and 930 of 1973 for offences punishable (1) under the·.
M.L.S. SONI v. U.0.1. [PANDIAN, J.] 715

).
-~
rrovisions of the Customs Act 1962 and (2) under the Gold Control A
Act 1968. After examination of the prosecution as well as the defence
witnesses and recording of the statements of the appellants under
Section 342 of the old Code of Criminal Procedure (hereinafter refer-
red to as the 'Code') arguments were advanced on behalf of the appel-
!ant/accused. The prosecution at this stage before commencing its B,
arguments filed two applications in both the cases under Section 540 of
the old Code (corresponding to Section 311 of the new Code) request-
.----1- ing 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. Das, Assistant Collector of Customs and the
Deputy Chief Officer (Assayer) ofMint Master, Bombay for examina-
__,
... tion either as prosecution witnesses or as court witnesses as cotemp-
lated under the said provision. The learned Judicial Magistrate passed
c
two orders rejecting the applications which orders, on revision by the
respondents were confirmed by the Sessions Judge. On being aggrie-
~ ved by the said revisional orders, the Union of India (the first respon-
dent herein) preferred two Criminal Revision Applications Nos. 97
D'
and 98 of 1978. The second respondent, namely, the State of Gujarat
also preferred two other Criminal Revision Application Nos. 124 and
125 of 1978. The High Court by its C()qlmon Judgment, though heavily
criticised the conduct of the prosecution for its deplorable and
lethargic attitude in not carefully and promptly conducting the pro-
)._ ceedings allowed all the Criminal Revisions for the reasons assigned
E
therein holding thus:

-
__,
~
"In view of what has been stated above, I accept the four
petitions filed in this court by the Union of India, and the
Sta~e of Gujarat, and direct the Union of India to examine
the aforesaid three witnesses within a period of fortnight
F
I
after the receipt of the order of this court to the trial court.
..i·
~ After the Union of India examines the aforesaid three
witnesses as aforesaid, it will be open to the accused to
cross-examine all the witnesses examined by the Union of
India before the learned Magistrate."

Feeling aggrieved by the judgment of the High Court, these two G·

- >---
appeals are preferred by the appellant. In this context, it is pertinent to
note that the appellant has not directed any appeal against the judg-
ment of the High Court in allowing the two other Revision Application
Nos. 124 and 126 of 1978 filed by the Gujarat Government which were
J'
.also allowed by the High Court. H
716 SUPREME COURT REPORTS [1991] 1 S.C.R

The learned counsel appearing on behalf of the appellant vigo-
A rously challenged the legality of the impugned judgment inter-alia con-
tending that the High Court has gravely erred in allowing the second
revision petitions filed by the respondent by ignorning the weighty
reasons given by the Trial Magistrate and the Sessions Judge (before
whom the first revision was filed) and 'thereby in permitting the
B respondent-the Union of India-to examine the three witnesses as
prayed by it, notwithstanding that the case was pending before the
Trial Court for considerable length of time and the defence argument
was. concluded and that the High Court, by the impugned order has
permitted the prosecution to bolster tip its case by filling up the lacuna
and plugging the loopholes which if carried out would be detrimental
and prejudicial to the appellant.
c
The next legal submission made on behalf of the appellant is that
the entertainment of the second revision by the High Court is in viola-
tion 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
D even assuming that it was not so, the second ,revision by the same
affected party is not entertainable.

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). ___..(
E
Section 540 was found in Chapter XL VI 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 Section 540
-.
F of the old Code except for the insertion of the words 'to be' before the
~·
word 'essential' occurring in the old Section. This section is mainfestly -~
in two parts. Whereas the word 'used' in the first part is 'may' the word
used in the second part is 'shall'. In consequence, the first part which is
permissive gives purely discretionary authority to the Criminal Code
and enables it 'at any stage of enquiry, trial or other proceedings·
G under the Code to act in one of the three ways, namely,

( 1) to summon any person as a witness or

(2) to examine any person in attendance, though not summoned
~ -
as a witness, or
H (3) to recall and re-examine any person already examined.
M.L.S. SONI v. U.O.I. [PANDIAN, J.) 717

The second part which is mandatory imposes an obligation on the
~~ A

(1) to summon and examine, or
,,
(2) to recall and re-examine any such person if his evidence
appears to be essential to the just decision of the case. B

The very usage of the words such as 'any court', 'at any stage', or
'of any enquiry, trial or other proceedings', 'any person' and 'any such
person' clearly spells out that this section is expressed in the widest
possible terms and do not limit the discretion of the Court in any way.
However, the very width requires a corresponding caution that the
discretionary power should be invoked as the exigencies -0.f justice C
require and exercised judicially with circumspection and corisistently
with the provisions of the Code. The second part of the Section does
not allow for any discretion but it binds and compels the Court to take
any of the aforementioned two steps if the fresh evidence to be
obtained is essential to the just decision of the case. D

It is a cardinal rule in the law of evidence that the best available
evidence should be brought before the Court to prove a fact or the
>---- points in issue."'>But it is left either for the prosecution or for the
defence to establish its respective case by adducing the best available
evidence and the Court is not empowered under the provisions of the E
Code to compel either the prosecution or the defence to examine any
- particular witness or witnesses on their sides. Nonetheless if either of
the parties with-holds any evidene which could be produced and
which, if produced, be unfavourable to the party withholding such
evidence, the court can draw a presumption under illustration (g) to
-r--- Section 114 of the Evidence Act. In such a situation a question that F 1

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 G
~ 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 .H
718 SUPREME COURT REPORTS [ 1991) 1 S.C.R.

A Court by exercising its discretionary authority at any stage of enquiry, y-·
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 sum-
moned as a witness or recall and re-examine any person already ..
examined -who are expected to be. able to throw light upon the matter
B · in dispute; because if judgments happen to be rendered on inchoate~
inconclusive and speculative presentation of facts, the ends of justice
would be defeated. •

There are various other provisions in the new Code correspond-
ing to the provisions of the old Code empowering the court specified
therein to recall any witness or witnesses already examined or summon
C any witness, if it is felt necessary in the interest of justice at various
stages mentionedin the concerned specific provisions.
'r·
A Judge under Section 236 (Section 310 old Code) or a Magis-
trate under Section 248(3) (Section 251-A(13) and 255-A old Code) is
D empowered to take evidence in respect of the previous convictions of _.
the accused person concerned if he is charged with the previous con-
viction under sub-section (7) of Section 211 and if he does not admit
the previous conviction. Under Section 367 (Section 375 old Code) if,
when sentence of death passed by the Court of Sessions is submitted _.,(
for confirmation to the High Court under Section 366(1) (Section 374
E of the old Code), the High Court thinks that a further enquiry should
be made into or additional evidence taken upon, any point bearing
upon the guilt or innocence of the convicted person, it may make such
inquiry or take such evidence itself or direct it to be made or taken by
the Court of Session.

·F -Under Section 391 (Section 428 old Code) the Appellate Court ~ ~
while dealing with any appeal under Chapter XXIX,, if thinks addi-
tional evidence to be necessary, may after recording its reasons either
take such evidence itself or direct it to be taken by a subordinate Court
as the case may be. Under Section 463(2) (Section 533 old Code) if any
Court of Appeal, Reference and Revision before which confession or
G other statement of an accused recorded or purporting to be recorded
under Section 164 or Section 281 (Section 364 of the old Code) is -<.,
tendered, or has been received in evidence, finds that any of the pro-
visions of either such sections have not been complied with by the
Magistrate recording the statement, the Court may notwithstanding
anything .contained in Section 91 of the Indian Evidence Act take
H evid~nce in regard to sue~ non-compliance and may, if satisfied that
.
M.L.S. SONI v. U.0.1. [PANDIAN, J.) 719

#. y such non-compliance has not injured the accused in his defence on the
merits and that he duly made the statement recorded, admit. such
evidence.

Analogous to the above provisions of the Code of Criminal Pro-
cedure there are various provisions in the Civil Procedure Code also
enabling the civil Court to summon witnesses and examine them in the
1. 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
c:
. ~/ 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 discretio- D
nary and very wide.

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, a Jtidge in order to discover or to
obtain proof of relevant facts is empowered under Section 165 of the E
Indian Evidence Act to exercise all the privileges and powers subject
..... to the proviso to that section which power he has under the Evidence
Act. Section 540 of the old Code (Section 311 of the new Code) and
Section 165 of the Evidence Act may be said to be complementary to
each other and as observed by this Court in Jamatraj Kewalji Govani v.
State of Maharashtra, [1967] 3 SCR 415 "these two sections between F
them confer jurisdiction on the Judge to act in aid of justice."

The second part of Section 540 as pointed out albeit imposes
upon the Court an obligation of summoning or recalling and re-
examining any witness and the only condition prescribed is that the
evidence sought to be obtained must be essential to the just decision of
the case. Though any party to the proceedings points out the desirabi-
lity some evidence being taken, then the Court has to exercise its
power under this provision-either discretionary or mandatory-
depending on the facts and circumstances of each case, having in view
that the most paramount principle underlying this provision is to dis-
cover or to obtain proper proof of relevant facts in order to meet the
720 SUPREME COURT REPORTS [1991] 1 S.C.R.

A requirements of justice. In this connection we would like to quote with y
approval the following views of Lumpkin, J. in Epps v. S., 19 Ga, 118
(Am), which reads thus: ·

" .............. it is not only the right but the duty of the
presiding judge to call the attention of the witness to it,
B whether it makes for or against the prosecution; his aim
being neither to punish the innocent nor screen the guilty, \
but to administer the faw correctly . . . . . . . . . . . . . . . . . . . ~ __..

Counsel seek only for their client's success; but the judge
must watch that justice triumphs."
c The law is clearly expounded in the t:ase of Jamatra j Kewal ji
Govani (referred to above) wherein Hidayatullah, J as he then was,
while speaking for the Bench about the unfettered discretionary power
of the court as envisaged under Section 540 of the Code has stated ~-
thus: '
D
"It is difficult to limit the power under our Code to cases
which involve something arising ex-improviso which no
human ingenuity could foresee, in the course of the de- .
fence. Our Code does not make this a condition of the
exercise of the power and it is not right to embark on judi- ~
E cial legislation. Cases that go 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 .................. .
-
F ....................................................
It would appear that in our criminal jurisdiction, statutory ~ J

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 pro-
G vided 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
H acted without the requirements of a just decision, the
M.L.S. SONI v. U.0.1. [PANDIAN, J.] 721

action is open to criticism but if the court's action is sup-
A
portable as being in aid of a just decision the action cannot
be regarded as exceeding the jurisdiction."

The next important question is whether Section 540 gives the
court carte-blanche drawing no underlying principle in the exercise of
the extra-ordinary power and whether the said Section is unguided, B
uncontrolled and uncanalised. Though Section 540 (Section 311 of the
new Code) is, in the widest p·ossible terms and calls for no limitation,
either with regard to the stage at which the powers of the court should

..
- ,Ar'
be exercised, or with regard to the manner in which they should be
exercised, that power is circumscribed by the principle that underlines
Section 540, namely, evidence to be obtained should appear to the
court essential to a just decision of the case by getting at the truth by all c
lawful meaas. Therefore, it shold be borne in mind that the aid of the
section should be invoked only with the object of discovering relevant
facts or obtaining proper proof of such facts for a just decision of the
case and it must be used judicially and not capriciously or arbitrarily
because any improper or capricious exercise of the power may lead to D
undesirable results. Further it is incumbent that due care should be
taken by the court while exercising the power under this section and it
should not be used for filling up the lacuna left by the prosecution or
by the defence· or to the disadvantage of the accused or the cause
serious prejudice to the defence of the accused or to give an unfair
advantage to the rival side and further the additional evidence should E

- not be received as a disguise for a retrial or to change the nature of the
case against either of the parties.

Fazal Ali, J in Rameshwar Dayal v. State of U. P., [ 1978] 2 SCC
518 while expressing his views about the careful exercise of its power
by the court has stated: F

"It is true that under Section 540 of the Criminal Procedure
Code the High Court has got very wide powers to examine
any witness it likes for the just decision of the case, but this
power has to be exercised sparingly and only when the ends
of justice so demand. The higher the power the more care- G
ful should be its ~xercise ............................ .
The words, "Just decision of the case" would become
meaningless and without any significance if a decision is to
be arrived at without a sense of justice and fair play."

In State of West Bengal v. Tulsidas Mundhra, [1963] 2 S.C.J. 204 H
at 207, it has observed: ·
722 SUPREME COURT REPORTS ~1991] 1 S.C.R:
______,
"It would be noticed that this section confers on criminal <
A Courts very wide powers. It is no doubt for the Court to
consider whether 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
B case, it is its duty to take such evidence. The exercise of the ·
power conferred by section 540 is conditioned by the __l..__-"
requirement that such exercise would be essential to the
just decision of the case." ·

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
c

D
retains seisin of the criminal proceeding, without qualifying any limita-
tion or prohibition. Needless to say that an enquiry or trial in a crimi-
nal 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
1"r -
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 evidence on his
behalf but filed a written statement, claiming inter-alia that no offence
had been disclosed against him, since no witness had deposed that the
contraband had been seized from him under the Act in the reasonable
belief that they were smuggled goods. The day after the statement was
filed the prosecution applied for examination of the customs officer
who was incharge of the search as a court witness in the interest of
justice. The Magistrate ordered the examination of the officer under
-
Section 540 of the Code rejecting the objections raised by the appel-
F lant. Though an opportunity was given to the appellant to lead defence
evidence, the appellant stated that he had nothing further to add and
no evidence to lead. The Trial Court convicted the appellant who
being aggrieved by the judgment of the Trial Court preferred an
appeal to the High Court which dismissed the appeal. · Before this
Court it was contended that the evidence of-the officer was improperly
G received. That contention has been repelled by this court observing
"This power is exercisable at any time and the Code of Criminal Proce-
dure clearly so states" and thereafter concluded "it cannot be said that
the Court had exceeded its jurisdiction in acting the second part of
~ 1
H
Section 540 of the Code of Criminal Procedure."

Gajendragadkar, J. speaking for the Bench in Tulsidas Mundhra
I
M.L.S. SONI v. U.O.I. [PANDIAN, J.] 723

~ (cited supra) has pointed out as follows:
A
"Section 540 in terms applies at any stage of any enquiry,
trial or other proceeding under this Code. This section is
wide enough to include a proceeding under section 207-A
and so, it would be unreasonable to contend that the
scheme of section 207-A makes section 540 inapplicable to B
the proceeding governed by section 207-A. The power of
the Court under section 540 can be exercised as much in
regard to cases governed by section 207-A as in regard to
other proceedings governed by the other relevant provi-
sions of the Code.''

(It may be noted that section 207-A of the old Code in Chapter XVIII
c
under the caption "Enquiry into cases triable by the court of Session or
the High Court" dealt with the procedures to be adopted in proceed-
ings instituted on police report and this provision is omitted in the new
Code.)
D
This Court in Kewalji's case (albeit) held that Chapter XXI of
Cr. P.C. (old) under the heading "Of the Trail of Warrant--cases by
Magistrates" does not restrict the powers of criminal court under
Section 540. ·

In Masalti v. State of U.P., AIR 1965 S.C. 202 wherein the E
defence did not opt to examine some witnesses who have been left out

- by the prosecution on the bona fide belief that those.witnesses had
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 F
,C
I "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.

It has been held by this Court in Rajeswar Prosad }[~ra v. State
,. of West Bengal & Anr., [1966] 1SCR178 while dealing with the ample G
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 H
724 SUPREME COURT REPORTS [1991] 1 S.C.R.
,_
'
has refrained from doing, namely, to control discretion o~
A the appellate Court to certain stated circumstances. It may,
however, be said that additional evidence must be neces-
sary not because it would be impossible to pronounce judg-
ment but because there would be failure of justice without
it. The power must be exercised sparingly and only in suit-
B able cases. Once such action is justified, there is no restric-
tion on the kind of evidence which may be received. It may _,..__
be formal or substantial." · - _,..

The above view has been reiterated in R.B. Mithani v.

--
Maharashtra, AIR 1971S.C.1630.
~
c The principle of law that emerges from the views expressed by
this court in the above decisions is that the Criminal Court has ample
power to summon any person as a witness or recall and re-examine any "r
such person even if the evidence on both sides is closed and the juris-
diction· of the court must obviously be dictated by exigency of the
D situation, and fair-play and good sense appear to be the only safe
guides and that only the requirements of justice command and exami-
nation of any person which would depend on the facts and circumst-
ances of each case.

What falls for determination now is whether the person indicated ~
E should be given an opportunity to rebut the evidence of the witness or
witnesses summoned and examined under Section 540. This question
. came for determination in Rameshwai· Dayal's case and this court
. answered that question thus: -
"It was argued by counsel for the State that there is no
F provision in the Criminal Procedure Code which requires .
the court to allow the appellant an opportunity to rebut the~
evidence of witnesses recommended under Section 540 Cr.
P.C. This argument, in our opinion, is based on a serious
misconception of the correct approach to the cardinal
principles of criminal justice. Section 540 itself incorpora-
G tes a rule of natural justice. The accused is presumed to be
innocent until he is proved guilty. It is, therefore, manifest
that where any fresh evidence is admitted against the '~
accused the presumption of innocence is weakened and the
accused in all fairness should be given an opportunity to
rebut that evidence. The right to adduce evidence in rebut-
H tal is one of the inevitable steps in the defence of a case by
M.L.S. SONI v. U.0.I. [PANDIAN, J.] 725

the accused and a refusal of the same amounts not only to
an infraction of the provisions of the Criminal Procedure A
Code but also of the principles of natural justice and
offends the famous maxim audi alteram partem ...... .

A careful perusal of this provision manifestly reveals that
the statute has armed the Court with all the powers to do B
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 appears to us to be· implicit
under Section 540 of the Cr. P. C."
c
See also Kewalji's case (cited above). This was the view taken by
various High Courts such as in Channu Lal v. R, AIR 1949 All. 692;
Rengaswami Naicker v. Muruga Naicker, AIR 1954 Mad. 169; Shugan
Chand v. Emperor, AIR 1925 Lah 531 and The Queen v. Assanoollah,
13 SWR (Crl.) 15. D

The views expressed in the above judgments 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 E
of justice that the accused should be afforded a fair and reasonable
---- opportunity to rebut that evidence brought on record against him.

With this legal background let us now turn to the challenge posed
by the appellant in these appeals. The Trial Court and the First Revi-
sion Court rejected the request of the prosecution on three grounds, F
namely, first ~hat the prosecution has attempted to fabricate evidence
at a belated stage to fill up the lacuna in the prosecution case and
secondly that the request of the prosecution for taking additional evi-
dence was after the closure of the defence and thirdly a substantial
prejudice would be caused to the appellant if the prosecution is
allowed to adduce fresh evidence. As pointed out by the High Court in G
its impugned order, gold, silver and ornaments of the value of
Rs.8,48,482 and currency notes of Rs.79,000 have been seized from
the premises, searched on the strength of the search warrant issued by
Shri K.K. Das. What the appellant now contends is that the order of
the High Court permitting the prosecution to recall one of the witnes-
ses already examined and to summon two other new witnesses to prove H
726 SUPREME COURT REPORTS [ 1991] 1 S.C.R.

the foreign markings on the lagadis is in violation of the principle ,
A underlying Section 540. We waded through the entire records inclusive:
of the copies of depositions, search warrant and the application filed
by the prosecution under Section 540 which are available in the file,
forwarded by the High Court though those documents are not annexed
with the SLP. The prosecution filed the petition for examination of the
B three witnesses stating that foreign ingots (lagadis) have been seized
from the possession of the appellant and that warrant for search of the
premises of the appellant/accused was issued in this regard by the
Assistant Collector of Customs, namely Shri K.K. Das and hence fresh
evidef!Ce is necessary for a just decision of the case. After perusing the
depositions of the witnesses already examined that are found on the
file, we think that the appellant/accused cannot be said to be pre-
C judiced in any way by examination of these three witnesses. PW-2 who
-
was then working as Superintendent of Customs in the office of the
·Assistant Collector of Customs at Adipur during the relevant period
has stated that Shri K.K. Das who was the then Assistant Collector of
Customs issued the warrant dated 7. 9.1971 authorising Shri Mirchan-
-
D dani, Superintendent of Customs, Adipur to search for the prohibited .
and dutiable goods and documents in the premises mentioned in the
warrant. It 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
E others inclusive of Superintendent Mirchandani went to the house of
the appellant and they seized the gold ornaments Dhalia, that is, pri-
mary gold under Panchnama and search list Exts. 24 and 25. There- -
fore, the appellant's grievance that he has been taken by surprise ori
the request of the prosecution for taking fresh evidence; that the evi-
dence sought to be obtained is only for filling up the lacuna and the
F 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.
G ...
In the light of the proposition of law which we have derived in ._,/
the preceding portion of the judgment there is no illegality in summon- . \
ing the witnesses after the closure of the defence arguments. It is seen
from the order of the Trial Court that the argument of the prosecution
has not yet begun. Since we feel that any further observation of ours in
H justification of this order may prejudice the defence of the appellant
M.L.S. SONI v. U.O.I. [PANDIAN, J.] . 727

·~ before the Trial Court, we are not inclined to discuss the evidence any
A
further.

A decision of this Court in Mir Mohd. Omar and Others v. State
of West Bengal, [1989] 4 SCC 436 was relied upon to show that after
the examination of the accused under Section 313 of the new Code
(corresponding to Section 342 of the old Code) the prosecution should B
not move the Trial Judge for recalling a witness already examined, but
~- the observation made in that decision has no application to the present
case because in that case the said observation was made in a different
context by this court while examining the plea of the prosecution in
. ,Y making corrections of the evidence already recorded under Section

--- 272 of the Code and that decision does not deal with the ambit of
Section 540 of the Code.
c

~ The other contention raised on behalf of the appellant is that the
~

order of the Magistrate rejecting the application of the prosecution
under Section 540 is not a revisable order under Section 397(1) as it
being an interlocutory order and even if it is not so, the second revision D
by the same party-i.e. Union of India is not entertainable in view of
the statutory bar under Section 397(3) of the new Code as the Union of
India has already availed the revision under Section 397(2) before the
Session Judge. We may straightaway reject this plea on the simple
,)....__ ground that the prosecution in the present case was launched under the
old Code and as such the only provisions of the old Code have to be E
applied as per Section 484 of the new Code. The fervent plea of the
appellant is though the prosecution was instituted under the old Code
he should not be denied the benefit and advantage of Section 397(2)
and (3) of the new Code. We are afraid that we could accede to this
inexorable request of the appellant for two reasons, namely, that the
appellant has not challenged the maintainability of the second revi- F
~ sion, filed and heard after the commencement of the new Code before
the High Court, claiming advantage of Section 397(3) of the new Code
and secondly he participated in the revision proceedings throughou.t
under the old Code. Having failed in the revision he has no justifica-
tion to raise this point before this Court, especially when the proceed-
ings under the old Code are saved by Section 484 of the new Code. G

~ As far as the question whether an order under Section 540 of the
old Code is an inerlocutory order or a final order, need not be gone
into as that question does not arise in these proceedings. We would
like to point out before parting with this judgment that though the
High Court by its impugned judgment directed the Union of India to H

-~
728 SUPREME COURT REPORTS [19911 1 S.C.R.

A examine the three witnesses, in fact it has allowed all the four revision
applications inclusive of the revision application Nos. 124 and 125 of
1978 filed by the State of Gujarat seeking the same prayer as that ot
the Union of India. The appellant as we have pointed out in the prefa-
tory portion of this judgment that that part of the judgment of the
High Court allowing the two revisions filed by the State Government
B
remains unchallenged. Further we would like to point out that the
High Court in its concluding paragraph of its judgment instead of using
the words "I ....... direct" ought to have used the words "I ....... .
permit". ·

For all the reasons stated above, we hold that the judgment of
c the High Court does not suffer from any illegality or perversity calling
for an interference at the hands of this Court and as such the appeals
are liable to be dismissed as devoid of any merit. However, we direct
the Trial Court to afford a fair opportunity to the appellant/accused to
cross-examine the witnesses sought to be examined by the Union of
India and also to lead rebuttal evidence if the appellant so desires.
D
Accordingly these two appeals are dismissed.

Y.L. Appeals dismissed.__

-