Power of Court to examine fresh witness at the instance of prosecution.

This revision is directed against the order passed by the Fourth Additional Judical First Class Magistrate, Vijayawada in C.F. No. 451 of 1982 in C.C. No. 333 of 1979.

2. The learned Assistant Public Prosecutor filed a memo on 9th February, 1982, requesting the learned Magistrate to issue summons to the clerk of the Court of the VI Additional Judicial First Class Magistrate, Vijayawada to cause production of the acquittance register (pay bill register) from 1st April, 1979 to 11th July, 1980, and recall D.W. 1 for further cross-examination on the basis of the above record. That petition was opposed by the accused. The learned Magistrate allowed the memo. under section 311, Criminal Procedure Code, on the ground that the recalling and re-examination of D.W. 1 is necessary for the production of the acquittance register from 1st April, 1979 to 11th July, 1980, and for confronting D.W. 1 on the point whether the accused can sign in English or not, and it is necessary so that the Court an arrive at the just decision of the case.

3. The learned Magistrate also took the view that the scope of section 311, Criminal Procedure Code, is very wide and any amount of evidence can be adduced for just decision of the case before the pronouncement of judgment and this includes the production of document and examining the defence witnesses as in the prosecution case on the basis of the document.

4. Sri T. Bali Reddy, the learned Counsel for the petitioner, contends that the learned Magistrate has not properly appreciated the scope and effect of the provisions of section 311, Criminal Procedure Code. He contends that when P.W. 3, who is a prosecution witness himself, admits that the accused does not know English and the same was corroborated by the defence witness, D.W. 1, it is not open to the Magistrate to summon the, acquittance register from 1st April, 1979 to 11th July, 1980 as it is neither necessary nor it is warranted under law since the summoning of the clerk of the Court to rebut the evidence of D.W. 1 is prohibited by law. In support of his contention he relied upon the decision of the Supreme Court in Jamatraj v. State of Maharashtra1 and also the decision of the Madras High Court, In re. V. Mahadevan2.

5. The learned Public Prosecutor, on the other hand, contends that if the Court feels it essential to summon any witness as a Court witness for just decision of the case, it is always open to the Magistrate to summon such a witness and examine him at any stage and section 311, Criminal Procedure Code, gives that power to the Magistrate.

6. Section 311, Criminal Procedure Code of the present Code corresponds to section 540 of the old Code. The scope and effect of section 540 became the subject-matter of several decisions of the various High Courts as well as the Supreme Court. The Supreme Court examined the scope and effect of section 540 in Jamatraj v. State of Maharashtra1. In that case after the prosecution evidence was closed, the accused was examined under section 342, Criminal Procedure Code, and he stated that he had no defence evidence but filed a written statement and claimed that no offence has been disclosed against him in the prosecution case as alleged before the Court. That statement was filed on 15th July, 1965. The following day, the prosecution applied for the examination of Dutta, Inspector of Customs, Bombay as a Court witness in the interest of justice. Dutta gave evidence as a Court witness. After Dutta's evidence one of the accused (Govani) was examined under section 342, Criminal Procedure Code, again and was given an opportunity to lead defence evidence. He stated that he had nothing further to add and no defence evidence to lead. The Magistrate after considering the arguments convicted Govani and sentenced him to one year's rigorous imprisonment and a fine of Rs. 2,000 in default further rigorous imprisonment for six months for each of the two counts. Govani appealed to the High Court. His contention in th