The court's power to examine witnesses under Section 540 CrPC is discretionary and cannot be used to fill gaps in the prosecution case.

JUDGMENT :

Barmn, J. - The complainant is the Petitioner in this criminal revision directed against an order dated April 1, 1959, passed by the learned Magistrate rejecting an application made by the complainant for examination of certain witnesses u/s 540 Code of Criminal Procedure in G.R. Case No.1866 of 1955.

2. The case arose out of an incident which took place more than four years ago on October 8, 1955. The First Information Report was lodged by the Petitioner on the same day. On October 22, 1955, the charge-sheet was filed in which the accused persons were charged under Sections 147, 323 and 342, Indian Penal Code. The trial commenced on December 5, 1955 on which date the prosecution witness P.W. 1 out of ten prosecution witnesses was examined. On December 9, 1955, as it appears from records, the investigating officer was summoned as a witness. On September 10, 1957, P.W. 10 was examined. On January 9, 1958 summons was issued to certain witnesses. It is clear from the order-sheet that there was inordinate delay on the part of the prosecution to examine the witnesses. In fact, as it appears from the order dated May 16, 1958, the learned Magistrate observed that the delay appeared to be vexatious and therefore on June 8, 1958, the evidence of certain witnesses was directed by the learned Magistrate to be expunged by reason of the prosecution not having offered the said witnesses for cross-examination. For ready reference, the order dated June 8, 1958, as appears from the order-sheet, reads as follows:

Put up tomorrow. I find undue day to prolong the trial. The chances offered are not availed of by prosecution. Expunge the evidence of P.Ws. who are not offered for cross-examination. Put up on 25/6 for statement of accused.

On June 25, 1958 statements of the accused persons were taken. On September 29, 1958, the case was transferred to another magistrate for disposal according to law. The case was posted on October 29, 1958. Arguments were heard on December 3, 1958, and it was not until December 26, 1958 that the complainant made an application making a prayer before the magistrate for examination of certain witnesses including the investigating officer u/s 540 Code of Criminal Procedure which, however, was rejected. In revision against the said order, the Additional District Magistrate also rejected the revision. It is noticed that no revision was filed against the order of the Additional District Magistrate made, as aforesaid, on January 20, 1959. On April 1, 1959 the complainant made a second application for examination of the witnesses u/s 540 Code of Criminal Procedure which also was rejected. It is against this order dated April 1, 1959 that the present application has been filed.

3. Mr. S.K. Ray, learned Counsel for the complainant-Petitioner, contended that the learned Magistrate was wrong in not making a order for examination of these witnesses which was very material for the purpose of this case. He also contended that in Section 540 Code of Criminal Procedure the first part of the section is discretionary the second part is mandatory. In other words, according to him, once the Magistrate is satisfied that the evidence appears to him to be essential to the just decision of the case then he must summon such witnesses. So far as the Magistrate's satisfaction is concerned, it is subjective satisfaction and it is discretionary but such discretion must be judicial discretion. The investigating officer's evidence is claimed to be essential for this case and therefore he should have been called. If the Magistrate thinks that certain evidence is necessary for the just decision of the trial of an offence, he is bound to bring that evidence upon the record under the provisions of Section 540. The Magistrate, however, should not of course examine any witness u/s 540 merely because the complainant chooses to suggest the witness but if he himself thinks that the evidence of the witness is essential he is not only allowed to examine