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SUPREME COURT OF INDIA
S. Ratnavel Pandian and K. Jayachandra
Reddy, JJ.
Mohanlal Shamji Soni - Appellant
versus
Union of India & Anr. - Respondents
Criminal Appeal Nos. 4 and 5 of 1979
Decided on 22-2-1991
Held: The Trial Court and the First Revision Court rejected the request of the prosecution on three grounds, namely, first that the prosecution has attempted to fabricate evidence at a belated stage to fill up the lacuna in the prosecution case and secondly that the request of the prosecution for taking additional evidence was after the closure of the defence and thirdly a substantial prejudice would be caused to the appellant if the prosecution is allowed to adduce fresh evidence. As pointed out by the High Court in its impugned order, gold, silver and ornaments of the value of Rs. 8,48,482/- and currency notes of Rs. 79,000/ - have been seized from the premises, searched on the strength of the search warrant issued by Shri. K.K. Das. What the appellant now contends is that the order of the High Court permitting the prosecution to recall one of the witnesses already examined and to summon two other new witnesses to prove the foreign markings on the lagadis is in violation of the principle underlying Section 540. We waded through the entire records inclusive of the copies of depositions, search warrant and the application fields by the prosecution under Section 540 which are available in the file, forwarded by the High Court though those documents are not annexed with the SLP. The prosecution med the petition for examination of the three witnesses stating that foreign ingots (lagadis) have been seized from the possession of the appellant and that warrant for search of the premises of the appellant accused was issued in this regard by the Assistant Collector of Customs, namely Shri K.K. Das and hence fresh evidence is necessary for a just decision of the case. After perusing the depositions of the witnesses already examined that are found on the me, we think that the appellant accused cannot be said to be prejudiced in any way by examination of these three witnesses. P.W-2 who was then working as Superintendent of Customs in the office of the Assistant Collector of Customs at Adipur during the relevant period has stated that Shri K.K. Das who was the then Assistant Collector of Customs issued the warrant dated 7.9.1971 authorising Shri Mirchandani, Superintendent of Customs, Adipur to search for the prohibited and dutiable goods and documents in the premises mentioned in the warrant. It is elicited from the same witness in the cross examination that the gold ornaments were seized since the seizing authority doubted that they are smuggled gold and procured by contravening the Gold Control Act. It is seen from the evidence of PW-3 that he and others inclusive of Superintendent Mirchandani went to the house of the appel1ant and they seized the gold ornaments Dhalia, that is, primary gold under Panchnama and search list Exts. 24 and 25. Therefore, the appel1ant's grievance that he has been taken by surprise on the request of the prosecution for taking fresh evidence; that the evidence sought to be obtained is only for filling up the lacuna and the judgment, impugned is prejudicial to him cannot be countenanced. Of the three witnesses, permitted to be summoned and examined on the side of the Union of India, the Mint Master is only an assayer. In our considered opinion, the facts and circumstances of the case require the examination of these three witnesses for a just decision of the case as held by the High Court. (para 15)
(ii) Criminal Procedure Code, 1973 Sections 397 and 311- Order of the Magistrate rejecting the application of the prosecution u/s 540 of the old Code of 1898 - Revision against - Dismissed - The second division filed by the Union of India is not barred u/s 397(3) of the Code.
Held: The prosecution in the present case was launched under the old Code and as such the only provisions of the old Code have to be applied as per Section 484 of the new Code. The fervent plea of the appellant is though the prosecution was instituted under the old Code he should not be denied the benefit and advantage of Section 397 (2) and (3) of the new Code. We are afraid that we could accede to this inexorable request of the appellant for two reasons, namely, that the appellant has not challenged the maintainability of the second revision, filed and heard after the commencement of the new Code before the High Court, claiming advantage of Section 397(3) of the new Code and secondly he participated in the revision proceedings throughout under the old Code. Having failed in the revision he has no justification to raise this point before this Court, especial1y when the proceedings under the old Code are saved by Section 484 of the new Code. (para 18)
Result: Appeal dismissed.
Section 311 of the Criminal Procedure Code, 1973 (corresponding to Section 540 of the old Code of 1898) empowers a criminal court at any stage of inquiry, trial, or other proceedings to:
The provision has two parts: - The first part is permissive and discretionary, allowing the court to act in the interest of justice (!) (!) (!) . - The second part is mandatory: the court shall summon or recall if the evidence appears essential to the just decision of the case (!) (!) (!) (!) (!) .
Key principles governing its exercise: - Expressed in the widest terms ("any court", "at any stage", "any person"), without limits on stage or manner, as long as the court retains seisin of the proceedings (!) (!) (!) (!) [5000058230012]. - Invoked by exigency of the situation, for discovering truth and ensuring justice, not as a umpire but actively finding relevant facts (!) [5000058230006][5000058230013]. - Not for filling lacunae in prosecution or defence, causing prejudice, or giving unfair advantage; must be judicial, circumspect, and for proper proof of relevant facts (!) [5000058230010][5000058230011]. - Applicable even after closure of evidence on both sides, defence arguments, or examination under Section 342 (old Code)/Section 313 (new Code), unless judgment is pronounced (!) [5000058230012][5000058230016]. - Best evidence should be adduced; court aids justice but cannot compel parties initially [5000058230006].
Safeguards: - If additional/fresh evidence is admitted against the accused, they must be given a fair opportunity to rebut, cross-examine, and lead rebuttal evidence, per natural justice (!) (!) (!) [5000058230014][5000058230020].
In this case: The High Court correctly allowed recall of one witness and summoning of two new ones post-defence closure to prove foreign markings on seized lagadis, as no prejudice to accused; existing evidence already covered search warrant and seizure, making it essential for just decision (!) [5000058230015].
Revision under Section 397: Proceedings under old Code governed by its provisions (
JUDGMENT
S. Ratnavel Pandian, J. - These criminal appeals by special leave granted under Article 136 of the Constitution of India are preferred by the appellant questioning the correctness of the judgment of the Gujarat High Court in Criminal Revision Application Nos. 98 and 97 of 1978 whereby the High Court set aside the judgment and orders dated 2.1.1978 of the Sessions Judge, Kutch at Bhuj made in Criminal Revision Application Nos. 46 and 45 of 1976 confirming the orders dated 19.6.1976 passed by the Judicial Magistrate, First Class, Kutch in Application Exh. Nos. 94 and 98 in Criminal Case Nos. 929 and 930 of 1973 respectively. The factual matrix that have relevance to the questions, raised and canvassed at the hearing may be briefly stated.
2. A raid conducted by the officers of the Customs Department in the business-cum-residential premises of the appellant on 17.9.1971 resulted in the seizure of some gold Lagadis bearing foreign marks, primary gold, gold ornaments and silver bricks, coins etc. to the value of about Rs. 8,48,422/-. During the said raid a sum of Rs. 79,000/- was also seized. In respect of this incident, the Assistant Collector of Customs filed two separate complaints on 26.11.1973 against the appellant in the court of the Judicial Magistrate, First Class, Anjar, being criminal cases Nos. 929 and 930 of 1973 for offences punishable (1) under the provisions of the Customs Act 1962 and (2) under the Gold Control Act, 1968. After examination of the prosecution as well as the defence witnesses and recording of the statements of the appellant under Section 342 of the old Code of Criminal Procedure (hereinafter referred to as the 'Code') arguments were advanced on behalf of the appellant/accused. The prosecution at this stage fore commencing its arguments filed two applications in both the cases under Section 540 of the old Code (corresponding to Section 311 of the new Code) requesting the Trial Court to recall Mr. Mirchandani (the Seizing Officer) for further examination arid to issue summons to two more witnesses, namely, Mr. K.K. Das, Assistant Collector of Customs and the Deputy Chief Officer (Assayer) of Mint Master, Bombay for examination either as prosecution witnesses or as court witnesses as contemplated under the said provision. The learned Judicial Magistrate passed two orders rejecting the applications which orders, on revision by the respondents were confirmed by the Sessions Judge. On being aggrieved by the said revisional orders, the Union of India (the first respondent herein) preferred two Criminal Revision Applications Nos. 97 and 98 of 1978. The second respondent, namely, the State of Gujarat also preferred two other Criminal Revision Application Nos. 124 and 125 of 1978. The High Court by its Common Judgment, though heavily criticised the conduct of the prosecution for its deplorable and lethargic attitude in not carefully and promptly conducting the proceedings allowed all the Criminal Revisions for the reasons assigned therein holding thus:
"In view of what has been stated above, I accept the four petitions filed in this court by the Union of India, and the State of Gujarat, and direct the Union of India to examine the aforesaid three witnesses within a period of fortnight after the receipt of the order of this court to the trial court. After the Union of India examines the aforesaid three witnesses as aforesaid, it will be open to the accused to cross-examine all the witnesses examined by the Union of India before the learned Magistrate."
3. Feeling aggrieved by the judgment of the High Court, these two appeals are preferred by the appellant. In this context, it is pertinent to note that the appellant has not directed any appeal against the judgment of the High Court in allowing the two other Revision Application Nos. 124 and 125 of 1978 filed by the Gujarat Government which were also allowed by the High Court.
4. The learned counsel appearing on behalf of the appellant vigorously challeng
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