Borooah, J.@mdashOn a complaint filed by the Deputy Controller, Central Excise (Gold Control), Calcutta, the accused Petitioner and the co-accused opposite party, Balai Charan Das, were summoned by an order dated May 19, 1967, under Rules 126P(1)(11), 126(l)(k) and 126P(2)(ii) of the Defence of India Rules, 1962.
2. The allegations made in the complaint, in brief, were as follows:
The officers of the Gold Control Department of the Central Excise carried on a search on May 26, 1963, in the Jewellery shop of the Petitioner, namely, M/s. Rajendra Nath Das and Sons at Sahabharang-bazar and also at the residence of his brother Balai Charan Das at Bakshibazar, both in the town of Midnapore, and seized various gold ornaments. It was alleged that the Petitioner and his brother Balai Charan Das had violated the provisions of the Gold Control Order. The Petitioner was duly placed for trial along with his brother and the procedure followed in the trial was that of a warrant case instituted otherwise and on a Police report.
3. In support of the prosecution case thirteen witnesses were led and some of them were cross-examined on behalf of the defence an order dated April 27, 1968, charges were framed under the visions of the Defence of India Rules, and both the Petitioner and brother pleaded not guilty to the charges.
4. After the framing of the charge the defence gave a list of the excess whom they wished to be recalled for cross-examination. July 17, 1970, the defence declined to cross-examine P.W. 9 and as discharged. Later on the same day, the prosecution made a to the Magistrate to recall P.W. 9 for putting certain question The Magistrate allowed the prayer and issued summons for his appearance on September 18, 1970. The defence on the same day filed a petition of objection regarding the recall of P.W. 9 by the prosecution. The Magistrate passed an order that the matter would be considered in due course.
5. On July 17, 1970; the Magistrate also issued summons for recalling P.W. 5. On September 23, 1970, the defence filed a petition to the effect that it did not wish to examine P.W. 5 and, as such, no process should be issued for his appearance.
6. On September 7, 1970, the Magistrate fixed December 17, 1970, for cross-examination of P. Ws. 5 and 9. On December 17, 1970, the prosecution filed another application for leave to further examine P. Ws. 5 and 9 and, if necessary, to cross-examine them as hostile witnesses. Sri A. K. Sen, Magistrate, First Class, Midnapore, who was trying the case, by his order dated December 17, 1970, allowed the prayer of the prosecution. Against this order the Petitioner has come up before this Court in revision.
7. Mr. A. K. Dutt, learned Advocate appearing on behalf of the Petitioner, has challenged the order of the learned Magistrate permitting the recall of P. Ws. 5 and 9 for further examination and cross-examination as hostile witnesses. According to Mr. Dutt, the power of a Magistrate to recall witnesses is limited to Sections231, 256 and proviso to Section 350 of the Code of Criminal Procedure. These are the only sections which- enable a Magistrate to recall witnesses. According to Mr. Dutt, Section 540 empowers a Court to recall a witness at any stage of an enquiry or trial, but this power should be sparingly exercised and only when it is essential to the just decision of the case. Mr. Dutt has also drawn my attention to Section 137 of the Evidence Act which mentions only three stages in the examination of a witness, namely, examination-in-chief, cross-examination and re-examination. The prosecution, according to Mr. Dutt, exhausted its right to further examine P. Ws. 5 and 9 after they had been called before the framing of the charge, examined in-chief, cross examined and discharged. Only at that stage the prosecution had a right to re examine or, if necessary, to put questions in the nature of cross examination to those witnesses.
8. Mr. Baidyanath Mukherjee, learned Advocate appealing behalf of the State, has submitted that the powers u/s 540 the Code of Criminal Procedure are wide enough to enable a Migrate to recall any witness at any stage of the trial, and in the instates case it is to the interests of justice that P. Ws. 5 and 9 should recalled and further examined by the prosecution..
9. The powers of a Court u/s 540 of the Code of Criminal Procedure are very wide. The Court can summon, examine or and re-examine any person at any stage if his evidence appears to essential to the just decision of the case. The question, however, in the present Rule is not the power of the Court to recall a witness, but the right of the prosecution to put questions in the nature of cross-examination to P. Ws. 5 and 9. u/s 154 of the Evidence Act a Court may in its discretion permit a person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. The question is when can the party who calls a witness be permitted to cross-examine his own witness u/s 154 of the Evidence Act. This power must necessarily be limited to the stage of the examination-in-chief, cross-examination and re-examination and not beyond. If the prosecution was permitted to cross-examine a witness at any stage of the enquiry or trial, it would seriously prejudice the defence and might also nullify the effect of cross-examination. The Court, of course, has u/s 165 of the Evidence Act power to put questions in any form at any time of any witness at any stage of the enquiry or trial.
10. In the case of
Section 137 of the Evidence Act gives only three stages, in the examination of a witness, namely, examination-in-chief, cross-examination and re-examination. This is a routine sequence in the examination of a witness. This has no relevance to the question when a party calling a witness can be permitted to put to him questions u/s 154 of the Evidence Act, that is, governed by the provisions of Section 154 of the said Act, which confers a discretionary power on the Court to permit a person who calls a witness to put any question to him which might be put in cross-examination by the adverse party. Section 154 of the Evidence Act does not in terms, or by necessary implication, confine the exercise of the power by the Court before the examination-in-chief is concluded or to any particular stage of the examination of the witness. It is wide in scope and the discretion is entirely left to the Court to exercise the power when the circumstances demand.
11. In the same case it was further observed:
The Court, therefore, can permit a person, who calls a witness, to put questions to him which might be put in cross-examination at any stage of the examination of the witness, provided it takes care to give an opportunity to the accused to cross-examine him on the answers elicited which do not find place in the examination chief.
12. I accordingly set aside the order dated December 17, 1970, of the learned Magistrate permitting the prosecution to recall P. Ws. 5 and 9 and to re-examine them and to declare them as hostile witnesses.
13. The learned Magistrate will now proceed with the trial in accordance with law.
14. The Rule is accordingly made absolute. Let the records be sent down expeditiously.
