These are two Criminal Revision Petitions, which have been filed against the orders made by the learned Stationary Sub-Magistrate, Kulitalai that he should examine an officer as a Court witness in C.C. Nos 839 and 840 of 1950.

I am unable to see any objection to the course adopted by the learned Stationary Sub-Magistrate. Under section 540, Criminal Procedure Code, a Court has

unrestricted powers of summoning a witness. The only restriction is that this power should not be exercised as has been pointed out by Somasundaram, J., in In re K.V.R.S. Mani1, to save the parties from trouble and expense. Subject to this, it is not only the prerogative but also the plain duty of a Court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. It would not be an improper exercise of the powers of the Court under section 540, Criminal Procedure Code, merely because the evidence taken supports the case of the prosecution and not that of the accused Narayana Nambiar, In re2. A just decision under section 540, Criminal Procedure Code, does not mean a decision in favour of the defence Kesava Pillai v. Emperor3.

The only rules, which the Magistrate must bear in mind when examining Court witnesses are (1) that the prosecution and the accused are both equally entitled to cross-examine a Court witness, and (2) that if the evidence of a Court witness is prejudicial to the accused, opportunity to rebut the evidence so given roust be given to the accused.

Subject to these twin rules dictated by fairplay and justice, I am unable to see any other restriction, which can be usefully placed and certainly there can be no restriction to the examination of a Court witness as is now sought to be made out.

In this connection, we can usefully remember an extract from Burke in the Trial of Warren Hastings,

“A Judge is not placed in the high situation merely as a passive instrument of the parties. He has a duty of his own, independent of them and that duty is to investigate the truth.”

Lumpkin, J., (United States of America) observed in a decision,

“Counsel seek only for their clients’ success; but the Judge must watch that justice triumphs.”

The learned Stationary Sub-Magistrate of Kulitalai, therefore, has to be congratulated for discharging his duty, viz., examining a witness, whom he considered as essential for finding out the truth in the case and not having taken an abbreviated view of his own functions and left in doubt matters in dispute which ought to be resolved in the paramount interests of justice. The petitions are dismissed.

K.S. ----- Petitions dismissed.