ORDER

V.G. Palshikar, J.

1. This revision petition under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code of 1973") raises an important question of law as regards the scope and extent of the provisions of Section 311 of the Code of 1973.

2. Brief facts, giving rise to this revision petition, as slated by the accused petitioner, are that on a challan having been filed against the petitioner for offence punishable under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act (for short, 'the NDPS Act') trial was conducted. The prosecution closed its evidence on 19th Dec. 1996 and after recording the statement of accused under Section 313, Cr.P.C. the case was fixed for final hearing. When the case was being heard on 3-1-1997, during the course of arguments, it was considered by the prosecution that where the sample remained from 1 -5-1995 to 5-5-1995, has not been proved. After about 2'/2 months and by seeking three adjournments the prosecution filed an application on 17-3-1997 under Section 311 of the Code of 1973, which was replied by the accused on 22-3-97. In the application it was prayed by the prosecution that evidence of one Ganga Ram, who was the Malkhana Incharge, may be recorded, though his name was not there in the list of witnesses. The learned trial Judge vide its order dated 30-8-1997 decided the application and allowed the production of additional evidence in the shape of witness Ganga Ram.

3. This order dated 30-8-1997 is impugned in this petition on the ground that permitting the examination of Ganga Ram as prosecution witness after the evidence of the prosecution was closed and examination of the accused under Section 313 of the Code of 1973 was completed, would seriously prejudice the accused and would amount to filling up deliberate lacunae left in the prosecution by the prosecuting agency. Several decisions were cited in support of this proposition. In all these decisions what has been laid down by the Courts in India is that power to record additional evidence under Section 311 of the Code of 1973 is absolute but it should be cautiously exercised.

4. In view of the fact that several decisions of this Court are relied upon for rejecting the taking of additional evidence, 1 feel it necessary to write an elaborate judgment on this issue.

5. In order to correctly assess the scope and extent of the provisions of Section 311 of the Code of 1973, it would be necessary to trace the history of this law. Prior to 1973 Code, Criminal Procedure was controlled by the Code framed in 1898. Section 540 of the Criminal Procedure Code, 1898 (hereinafter referred to as "the Code of 1898"). reads thus:

Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case.

Several judgments of the different High Courts in India and the Supreme Court have been recorded regarding scope and extent of the power of the Section of 540 of Code of 1889. This Code was repealed and substituted by new Code in 1973 by Code of 1973 which gives similar powers to the Courts by Section 311 of the Code of 1973. It reads thus:

311 Power to summon material witness, or examine person present. Any Court may, at any stage of an inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.

A comparative reading of Section 540 of the Code of 1898 and Section 311 of the Code of 1973 will disclose that they are almost parimateria and decisions rendered by the various High Courts and Supreme Court relating to Section 540 of the Code of 1898 will, therefore, apply with equal force as precedent after promulgation of Section 311.

6. In K.K. Narayanan Nambiar, AIR 1942 Madras 223 : 43 Cri LJ 567, the Madras High Court considered the scope of Section 540 of the Code of 1898. It observed thus at page 558 of Cri LJ :

Section 540 is extremely wide in its provisions and enables a Magistrate at any stage of any proceedings 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 summoning of a person as a witness whom the Court considers necessary for giving a just finding cannot be said to be an improper exercise of the powers under Section 54 merely because the evidence supports the case of the prosecution and not that of the accused. Section 540 is not limited for the benefit of the accused only and the Court has power under Section 540 to examine a witness even to rebut defence evidence; but those powers should be sparingly invoked for such a purpose. The Court is not precluded from exercising its discretion under Section 540 merely because somebody asks it to do so.

7. Provisions of Section 540 of the Code of 1898 were considered by the Allahabad High Court in Saghir Hussain v. State, AIR 1958 All 312 : 1958 Cri LJ 582 While dissenting from the judgment deli verd by the Madras High Court in N. Krishna Swamy v. State, AIR 1956 Madras 592 : 1956 Cri LJ 1207 (2), his Lordship of Allahabad High Court observed thus at page 589 of Cri LJ :

It cannot be said that the Court can examine a witness under Section 540 only if any matter arises eximproviso which no human ingenuity can foresee. The powers should be interpreted by the words used in the section itself, All that Section 540 requires is that the Court shall examine any person if his evidence appears to it essential to the just decision of the case. It stands to reason that if the appellate Court can examine necessary witnesses under Section 428, the trial Court can also examine necessary witnesses under Section

540.

It will thus be seen that the power to examine additional witness can be exercised both by the appellate Court as also the trial Court and all that is necessary to be seen is whether evidence of such person appears to be essential to the jus) decision of the case. The ratio of this case is therefore, that the power to examine witness at any time of the proceedings under Section 540 of the Code of 1898 is an absolute power which is to be cautiously exercised.

8. The Madras High Court, therefore, took the view way back in 1942 that the provisions of 540 are extremely wide and they enable the trial Judge to examine any person or witness at any stage any proceedings. The Madras High Court also observed that merely because such additional evidence will benefit either party should be no ground for not recording additional evidence. The Madras High Court has also expressed the caution that these powers under Section 540 of Code of 1898 should be sparingly invoked for such purpose.

In Ram Jeet v. The State, AIR 1958 Allahabad 439 : 1958 Cri LJ 716 a Division Bench of the Allahabad High Court again considered the provisions of Section 540 of Code of 1898 and observed thus at page 717 of Cri LJ :

The section is manifestly in two parts. The first part gives purely discretionary authority to the criminal Court; on the other hand, the second part is very wide and its very width requires a corresponding caution on the part of the Court. But the second part does not allow for -any discretion; it binds the Court to examine fresh evidence and the only condition prescribed is that this evidence must be essential to the just decision of the case. If this results in what is sometimes thought to be the filling of loopholes. that is a purely subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case and has to be determined by the presiding Judge.

9. The Allahabad High Court has then proceeded to observe in para 3 that the contention that Section 540 of the Code of 1898 cannot be used for filling loopholes left by the parties is not infrenquently found contained in judgments of subordinate Courts and in submission from the bar, but is none the less a misconceived one. The Division of the Allahabad High Court was, therefore, of the view that the provisions of Section 540 of the Code of 1898 can be used even for filling loopholes. I am in respectful agreement with the observations of the Division Bench of the Allahabad High Court. The Bombay High Court has while considering the provisions of Section 540 of 1898 Code also given a very liberal construction to the provision. The judgment reported in Shreelal Kajaria v. The State, AIR 1964 Bombay 165 : 1964 (2) Cri LJ 15 laid down that the Court has powers to call witnesses even after the case is over. The observations of the Bombay High Court reads thus at page 18 of Cri LJ :

The question, whether or not, after the entire evidence is over, the Court should permit further evidence to be led, will depend on the facts of each case. It cannot be laid down as a general rule 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 had been closed. The Judge has to exercise caution in using his powers under Section

540. Before using his powers, the Judge has to take into account the circumstances and decide whether the course of examining witnesses after the entire cases closed would be so irregular that it may be injustice to the accused. The mere fact that evidence is directed to be taken after the entire case is over is not in itself in excess of the powers under Section 540.

Section 540 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. In fact, there will be a failure of duty on the part of the Court in not calling witnesses when once it comes to the conclusion that the examination of witnesses is necessary for thejust decision of the case. Whether or not the attention of the Court has been invited to the necessity of certain evidence by the prosecution or the defence is immaterial so long as the satisfaction is of the Court. The mere fact, therefore, that the prosecution did make an application for examination of witnesses will not affect the powers which the Court has for examining those very witnesses in the interest of justice.

10. These judgments were then scrutinized by a three Judges' Bench of the Supreme Court of India. The decision is reported in Jamatraj Kewalji Govani v. State of Maharashtra, AIR 1968 SC 178 : 1968 Cri LJ

231. The Supreme Court has while affirming the judgments of the Madras, Allahabad and Bombay High Courts, referred to above, have determined the scope of Section 540 of the 1898 Code in the following terms at page 233 of Cri LJ :

Chapter 21 of Cr.P.C. does not restrict the powers of Criminal Court under Section 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. The section is in two parts. The first part gives a discretionary power but the latter part is mandatory. The use of the word 'may' in the first part of the word 'shall' in the second firmly establishes this difference. 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 bona fide 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 something in the interest of the accused only. The action may equally benefit the prosecution. There are, however, two aspects of the matter which must be distinctly kept apart. The first is that the prosecution cannot be allowed to rebut the defence evidence unless the prisoner brings forward something suddenly and unexpectedly. There is, however, the other aspect namely of the power of the Court which is to be exercised to reach a just decision. This power is exercisable at any time.

11. In Mohammad Akbar v. Emperor, 1948 Cri LJ 242 : AIR 1948 Nagpur 209, an Hon'ble Single Judge of the Nagpur High Court, as it then was, considered the provisions, the provisions of Section 540 and observed that the trial Court is legally entitled to act under Section 540 and summon additional evidence even when the case is fixed for delivery of judgments. This judgment is complete answer to the controversy raised at the bar by the learned counsel for the petitioner that alter the case is closed for arguments of the prosecution and the statement of the accused under Section 313, Cr.P.C 1973 was recorded, power under Section 311, Cr.P.C. could not be exercised. To this extent, even the above referred judgments of the Supreme Court also state the same law.

12. The matter was again considered by a different Bench of the Supreme Court of India. The decision is reported in Mohan Lal Shamji Soni v. Union of India, AIR 1991 SC 1346 : 1991 Cri LJ 1521 where it is observed by their Lordships of the Supreme Court that the power under Section 540 of the Old Code is wide enough. It would be worth while in the circumstances to note in extenso the observations of the Supreme Court in this regard, which read as under at page 1524 of Cri LJ :

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. 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 where under 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 or 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. 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 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 of justice require and exercised judicially with circumspection and consistently 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.

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, namely, evidence to be obtained should appeal to the Court essential to a just decision of the case by getting at the truth by all lawful means. Therefore, it should 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 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 to 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 not be received as a disguise for a retrial or to change the nature of the case against either of the parties. It is therefore, clear that 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 must obviously be dictated by exigency of the situation and fair play and good sense appear to be the only safe guides and that only the requirement of justice command the examination of any person which would depend on the facts and circumstances of each case.

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.

13. A Division Bench of the Allahabad High Court in a decision reported in Ram Bali v. State, 152 Cri LJ 600 : AIR 1952 All 289 has also taken the similar view and the following observations of the Division Bench of the Allahabad High Court are noteworthy at page 604 of Cri LJ :-

A Sessions Judge is expected to try a criminal case intelligently and not leave everything in the hands of the Public Prosecutor and the defence counsel. It is his duty to find out whether the examination of any witness would be necessary in the interests of justice or not. He is bound to examine any witness whose evidence he considers essential in the interests of justice. He cannot evade this statutory responsibility by omitting to give all thought to the question whether the evidence of any witness left out by the parties is essential or not.

According to the Allahabad High Court, a duty is cast on the Sessions Judge to try a criminal case intelligently and not leave everything in the hands of the public prosecutor and the defence counsel. Considering from this aspect, the action of the learned Sessions Judge while passing the impugned order is liable to be held as correct and legal action.

14. It will thus be seen that provisions of Section 540 have been consistently interpreted by the Courts in India and the Supreme Court of India has also accepted the said interpretation.

15. Then comes the decision of this Court reported in Khumana Ram v. State of Rajasthan, 1996 (1) RCD 24. This case holds that recalling of witness by Sessions Judge to fill up gap left by prosecution is not proper. In that case, the prosecution could not ask any question on an important aspect of the matter to the witness and, therefore, an application under Section 311 of the Code of 1973 was made for recalling the witness and it was in that light relying on the decision of this Court reported in Ganpat Ram v. State of Rajasthan, 1992 Cr LR Raj 602 it was observed that recalling of witnesses cannot.be permitted to fill up lacuna left by the prosecution. In the present case, no witness is being recalled nor the prosecution has failed to ask any question in relation to the custody of the samples to any witness, therefore, the ratio of this case is not applicable to the facts of the present case. It is, therefore, liable to be distinguished. It is also liable to be dismissed in view of the decisions referred to above of the Supreme Court of India where the power given to the Court under Section 311, Cr.P.C. were held to be very wide and not circumscribe by any reason. This Court did not, while so laying down, in this judgment, take into consideration the Division Bench judgment of the Allahabad High Court as also the judgments of the Supreme Court on this question. For this reason also, the judgment is liable to be distinguished.

16. Reliance was then placed by the learned counsel for the petitioner on a judgment of this Court reported in Narain Das v. Union of India, 1996 Cr LR (Raj) 249, wherein similar view is taken. That case also dealt with recalling of a witness and on that short ground it is liable to be distinguished. All reasons given by me for distinguishing the earlier decisions apply mutatis mutandis for distinguishing this judgment also.

17. Then reliance is placed on a judgment of the Punjab High Court reported in Budhram v. State of Punjab, 1996 Cri LJ 3356 on the same point. The facts of that case are entirely different. The Court disallowed the additional evidence by recalling of witness because delay caused in recalling the witness was due to inadvertence of the prosecution amounted to callousness on the part of the prosecution. In the face of the decision on this issue rendered by the Supreme Court of India this case is also liable to be distinguished.

The learned counsel then relied on yet another decision of this Court reported in Cheeku Singh v. State of Rajasthan, 1997 (3) Raj LW 1661 : 1998 Cri LJ 950. In this case, this Court took the view that no additional evidence should be permitted in that case and in so coming to the conclusion, has observed thus at page 951 of Cri LJ :

The learned Public Prosecutor has not pointed out any special circumstance, which may justify the conclusion that examination of Herak Mohammad is essential to the just decision of the case within the meaning of second part of Section 311, Cr.P.C.

Therefore, the additional evidence was not accepted.

The facts of the case in Cheeku Singh v. State of Rajasthan (supra) were entirely different to the facts of the present case. The same are therefore, liable to be distinguished on this count.

18. Taking into consideration the law as expounded by the Supreme Court of India as also different Courts on the point I am of the opinion that the above four decisions of the Rajasthan High Court are liable to be distinguished as they do not in any manner state anything contrary to the proposition laid down by the Supreme Court of India and factually in this case, I am of the considered opinion that evidence of Ganga Ram who was Incharge of Malkhana is essential to establish that at every stage from investigation to prosecution and judgment, the goods involved in the crime were in proper custody. The learned Sessions Judge, Bikaner, therefore, was right in performing his duty as enjoined on him by the second part of the provisions of Section 311 as has been pointed out by my learned colleague in Cheeku Singh v. State of Rajasthan (supra) and no error can be found in summoning Ganga Ram as witness for the prosecution.

19. Yet another judgment of the Supreme Court reported in State of Rajasthan v. Daulat Ram, AIR 1980 SC 1314, is also liable to be taken into consideration where the Supreme Court has laid down that prosecution cannot be allowed to correct lacuna at revisional or appellate stage which according to me would mean that the prosecution can be allowed to correct the lacuna at the trial stage.

20. Taking into consideration the Law as expounded by the Supreme Court of India as also by the different High Courts in India on the point, I am of the opinion that the above four decisions of this Court are liable to be distinguished as they have not noticed in extensive the aforesaid decisions of the Supreme Court of India and the other High Courts. They also do not take into consideration the second part of the provisions of Section 311 of the Criminal Procedure Code which casts a duty of the Judge to see that evidence necessary for just and proper decision of the case is adduced before him.

21. It is in light of these pronouncements of the Supreme Court of India and the other High Courts that the provisions of Section 311 of the Criminal Procedure Code 1973 are liable to be scrutinised. It will be seen that the first part of the section permits a Court at any stage to call and examine or recall and re-examine any witness either suo moto or on the application of the prosecution. The first part takes care of applications by the parties to the litigations for this purpose. However the second part mandates that the Courts shall summon and examine or recall and re-examine any such person if his evidence appears to be essential to the just decision of the case. In my opinion, all the judgments stated above also state that the duties cast on the Court to see that the evidence essential to just decisions of the case is duly recorded. It thus, empowers the Courts even to fill up the lacuna that may advertently or inadvertently be kept in the case by the prosecution.

22. It is also necessary to take into consideration that several provisions of the N.D.P.S. Act have been held to be mandatory in nature and corresponding duty is therefore, cast on the Court to ascertain whether these mandatory provisions are complied with by the prosecution or not. Consequently, after the passage of such special enactment, it becomes a statutory duty of a Court to consider if evidence essential for such decision of the case is adduced before it or not. The Court may not or should not allow a person to go unpunished for non-compliance of such statutory provision. If obtaining compliance of that provision is possible during the conduct of the trial, it cannot be said that lapse on the part of the prosecution not to examine a witness to prove that the custody of narcotic and psychotropic drugs was always to the proper person should be allowed to exist to the benefit of the accused as the possibility of such lapse being deliberately committed by the prosecution cannot be overruled. In such circumstances, in my opinion it is the duty of the Court to see that such witness is summoned and such lacuna which exist deliberately or otherwise is fell down. I have already quoted above a decision of the Bombay High Court at Nagpur Bench and Allahabad High Court in this regard.-

23. In my opinion, where compliance which certain provisions of law is held mandatory, a corresponding duty arise in the Court to see that such compliance is made as evidence of such compliance is essential for just and proper decision of the case tried by the learned Judge under the special enactments. Therefore, it should be permissible for the Courts in the present circumstances to take additional evidence under Section 311 of the Cr.P.C. even in cases where there are lapse on the part of the prosecution deliberate or otherwise.

24. In the result, the revision fails and is dismissed.