MOHAN LAL SHAMLAL SONI v. UNION OF INDIA AND ANOTHER

Citation: [1991] 1 S.C.R. 712

Court: Supreme Court of India

Bench: S. RATNAVEL PANDIAN, K. JAYACHANDRA REDDY

Case summary

"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- ....

Judgment text

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--~ red by the appellant questioning the correctness of the judgment of the · . E 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 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 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 1cases 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 -~ 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 referred 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 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 respondent 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 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 after the receipt of the order of this court to the trial court. I .. 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.

" G· Feeling aggrieved by the judgment of the High Court, these two 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. The learned counsel appearing on behalf of the appellant vigorously challenged the legality of the impugned judgment inter-alia contending 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 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. 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. 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). ___.. ( 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 Section 540 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· 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 (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 ~~ (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. 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 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.

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 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 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 ~ 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 y-· 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 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 · 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 corresponding to the provisions of the old Code empowering the court specified therein to recall any witness or witnesses already examined or summon 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 Magistrate under Section 248(3) (Section 251-A(13) and 255-A old Code) is empowered to take evidence in respect of the previous convictions of _. the accused person concerned if he is charged with the previous conviction 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 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.

· -Under Section 391 (Section 428 old Code) the Appellate Court ~ ~ while dealing with any appeal under Chapter XXIX,, if thinks additional 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 other statement of an accused recorded or purporting to be recorded under Section 164 or Section 281 (Section 364 of the old Code) is - --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. --- With this legal background let us now turn to the challenge posed by the appellant in these appeals.

The Trial Court and the First Revision Court rejected the request of the prosecution on three grounds, namely, first ~hatthe 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 evidence 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 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 witnesses already examined and to summon two other new witnesses to prove the foreign markings on the lagadis is in violation of the principle , 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 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- 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 Mirchandani, 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 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. 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 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. ... 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 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 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 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 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 making corrections of the evidence already recorded under Section . ,Y 272 of the Code and that decision does not deal with the ambit of --- Section 540 of the Code. ~ 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 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 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- ~ 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 justification to raise this point before this Court, especially when the proceedings under the old Code are saved by Section 484 of the new Code. 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 ~ 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 prefatory portion of this judgment that that part of the judgment of the High Court allowing the two revisions filed by the State Government 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 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. Accordingly these two appeals are dismissed. Y. L. Appeals dismissed. __ -