The power of the court to examine a witness for the just decision of the case as conferred by Section 311 of the Code of Criminal Procedure cannot be curtailed in any manner or beyond any staging, so long as the court retains seizin of the matter.

1. The petitioner was undergoing trial before a Judicial Magistrate Ist Class, Barnala under Sec. 9 of the Opium Act. It was alleged against him that he was found to be in possession of 20 kgs. of opium. The prosecution had closed its case. The accused had been examined under Sec. 311, of the Code of Criminal Procedure, and he had closed his defence. It is at that stage that an application was made by the prosecution to get produced as Court evidence an affidavit of one Harpal Singh, a functionary of the office of the Chemical Examiner, to whom Constable Sadhu Ram had handed over the sample of opium, and with whom the sample had remained intact, till it went into the hands of the Chemical Examiner. Seemingly, (though not said in so many words by the learned Judicial Magistrate) this was necessitated by the prosecution on account of three Single Bench decisions of this Court reported as Tehal Singh V/s. State of Punjab, Criminal Revision No. 219 of 1979 decided on 20th Nov. 1980* Amarjit Singh V/s. State of Punjab, 1981 Chand LR (Cri) 608 and Atma Singh V/s. State of Punjab, 1981 Chand LR (Cri) 612 (the latter two decisions rendered by me) where absence of such link evidence was held to be fatal to the prosecution. * Reported in (1981) 8 Cri. LT 58 (Punj and Har) At this place, it deserves mentioning that the correctness of the aforesaid Single Bench decisions was doubted by I.S. Tiwana, J. in Mohinder Kumar V/s. State of Punjab. Criminal Revision No. 1043 of 1981, who referred the matter to a larger Bench on 28th Sept. 1981 to consider the correctness of the ratio of these cases But it seems that the Bench so constituted may now not undertake the exercise, since the aforesaid three cases as also two similar cases Cr. Revision No. 304 of 1979 (Gurcharan Singh V/s. State of Punjab) decided on 5th Feb. 1981, and Bishno V/s. State of Punjab 1981 Chand Cri C 243 : (1982 Cri LJ NOC 22) (Punj and Har) have impliedly been overruled by a Division Bench in Cr. Appeal No. 479 (D. B. A.) of 1980 (State of Punjab V/s. Nachhattar Singh) on 5th Jan. 1982, (reported in 1982 Cri LJ 1197) holding that such evidence is outside the purview of linkage.

2. To continue with the case in hand, the learned Magistrate vide his order, now impugned, allowed the application being of the view that the evidence sought to be brought on record was essential for the just decision of the case. He also observed that the accused would have the right to rebut or belie the genuineness of the affidavit of Harpal Singh because the case was still at the trial stage. On admission of this petition impugning that order, proceedings before the trial Court were stayed by the Motion Bench.

3. The main thrust of the learned counsel for the petitioner is that such evidence could not be brought on the record by any circumstances when the defence of the petitioner stood closed. Strength for the argument was sought from a few decisions of this Court which are presently being adverted to.

4. In Bhag Singh V/s. State of Haryana, Criminal Revision No. 356 of 1971 decided on 13th July, 1971, B.S. Dhillon J. observed as follows :-

"After taking into consideration the respective contentions of the learned counsel for the parties, I am of the opinion that this petition must succeed. No doubt the Supreme Court case reported as Jamatraj Kewalji Govani V/s. State of Maharashtra (1968 Cri LJ 231) (supra) lays down that the powers of Magistrate under Sec. 540 of the Criminal Procedure Code are too wide and in a given case if the learned Magistrate comes to the conclusion that for a just decision of the case evidence of additional witnesses is necessary, such witnesses can be summoned at any stage but at the same time their Lordships of the Supreme Court in the same judgement approved of the principle as laid down in In re K.V.R.S. Mani, AIR 1951 Mad 707 : (1951 52 Cri LJ 673) and Shreelal Kajaria V/s. State, ILR (1963) Bom 698 : (1964 (2) Cri LJ 15). These judgements lay down the pri