ORDER A.N. Mulla, J.
1. This is an application of revision filed by Saghir Husain and Wasi Husain who are being prosecuted under Section 5 (2) of the Prevention of Corruption Act before Sri A. D. Bhattacharya, Special Judge, Sitapur.
2. It appears that after the evidence was closed on 12-6-1957, the prosecution wanted to produce Sri A. M. Shah, S. P. Sitapur as a witness in the case. The defence objected to the examination of Sri A. M. Shah and contended that it is not open to the prosecution to examine a witness to fill in a lacuna in the prosecution case at such a late stage. Sri Bhattacharya then passed an order by which he proposed to examine Sri A. M. Shah as a witness under Section 540 of the Code of Criminal Procedure. The applicants felt aggrieved against this decision of the Special Judge and they have come up in revision before this Court with the prayer that the order of the Special Judge, D/-12-6-1957, proposing to examine Sri Shah under Section 540 of the Code of Criminal Procedure should be set aside.
3. The learned counsel for the applicants has relied upon a decision of the Madras High Court in support of this contention. This decision is reported in In re, N. Krishna Swamy, 1956 Cr. LJ 1207 : (AIR 1956 Mad 592) (A). It was held by a single Judge of the Madras High Court in this case that the Court can examine a witness under Section 540 only "if any matter arises ex improviso which no human ingenuity can foresee". It appears to me that the learned Judge who gave this decision went too far in restricting the powers of the Court under Section 540 of the Code of Criminal Procedure. The powers should be interpreted by the words used in the section itself. All that Section 540 requires is that the Court shall examine any person if his evidence appears to it essential to the just decision of the case. The only question, therefore, before the Special Judge was whether the evidence of Sri A. M. Shah is essential or not. I have read the order of the Special Judge and I find that he had made no observation on this point. The Special Judge should definitely find that the evidence of Sri Shah is essential before he can proceed to examine him as a witness.
4. I have observed above that in my opinion the learned Judge of the Madras High Court went too far in restricting the powers of the Court and I have made this observation because in my opinion the learned Judge ignored the provisions of Section 428 of the Code of Criminal Procedure. It stands to reason that the trial Court should also be competent to examine that evidence which the appellate Court can examine for the first time while hearing an appeal. The words of Section 428 of the Code of Criminal Procedure are as follows:
428 (1) "In dealing with any appeal under this Chapter the appellate Court, if it thinks additional evidence to be necessary, shall record its reasons, and may either take such evidence itself, or direct it to be taken by a Magistrate or, when the appellate court is a High Court, by a Court of Session or a Magistrate."
It would appear from the words of this section that where evidence is necessary in the opinion of the appellate Court it can examine witnesses itself or ask the subordinate Court to examine those witnesses. In my opinion it is difficult to accept that although the appellate court can examine necessary witnesses under Section 428, the trial Court cannot examine necessary witnesses under Section 540 of the Code of Criminal Procedure. I am therefore of the view that if the trial Court finds that a witness is a necessary witness it should summon him under Section 540 of the Code of Criminal Procedure and proceed to examine him.
5. It is for Sri Bhattacharya to determine whether the evidence of Sri A. M. Shah is necessary and essential for the decision of the case or not. If he thinks that this evidence is essential there is no bar in law to stop him from examining Sri Shah. If on the other hand, he is not convinced that this evidence is necessary or essential then there is no provision which would entitle him to examine Sri Shah. With these observations I am sending back the case to the Special Judge.
6. This application of revision is rejected. The stay order is vacated.