RAMANLAL MADHAVLAL KHARVA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) J. Petitioner Ramanlal Madhavlal Kharva is the original complainant in Criminal Case No. 8310 of 1969 pending in the Court of 8 Joint Civil Judge (Junior Division) and Judicial Magistrate First Class Baroda. Petitioner filed a criminal complaint against opponents Nos. 2 3 and 4 alleging that on 25th November 1969 opponent No. 2 aided and abetted by opponents Nos. 3 and 4 abducted Bai Kumud daughter of opponent No 2 with whom the petitioner is alleged to have contracted marriage on 24 November 1969 at Broach. The complainant after examining himself in support of his complaint proceeded to examine certain witnesses and gave a statement Exh. 70 informing the court that for the present he does not wish to examine any more witness. At that stage an application Exh. 72 was made by the accused informing the court that Bai Kumud who was alleged to have been abducted was the most material witness in the case and as the complainant did not wish to examine her she should be examined as a court witness under sec. 540 of the Criminal Procedure Code. This application was opposed by the complainant on the diverse grounds. Before passing the order on the application learned Magistrate inquired from the complainant whether he was willing to examine Bai Kumud as prosecution witness and the complainant declined to give any affirmative statement on this point at that stage. Thereafter the learned Magistrate proceeded to hear both the parties and granted the application. The order of the learned Magistrate is not clear whether he considered the case to fall within first part of sec. 540 or second part. On the whole it appears that the learned Magistrate considered the evidence of witness Bai Kumud essential for the just decision of the case. The complainant having been dissatisfied with this order preferred Criminal Revision Application No. 25 of 1921 in the court of the learned Sessions Judge at Baroda. The learned Extra Additional Sessions Judge Baroda by his order dated 31st August 1971 dismissed the revision application and confirmed the order of the learned Magistrate. The complainant having been dissatisfied with this order has preferred this revision application.

(2.) Mr. S. B. Majmudar learned advocate who appeared for the petitioner urged that the stage at which the case had reached when application - Exh. 72 was given on behalf of the accused was such a stage in course of inquiry or trial at which it was not open to the learned Magistrate to examine Bai Kumud as court witness. Sec.

(3.) Mr. Majmudar however urged that the section cannot be read ignoring the other provisions in the Criminal Procedure Code. In other words Mr. Majmudar wanted to urge that the section must fit in with various stages of inquiry or trial set out in different chapters of the Criminal Procedure Code. According to Mr. Majmudar if sec. 540 is required to be used or resorted to in trial of a warrant case it must be so interpreted 40 as to fit in some where in Chapter 21 of the Criminal Procedure Code. If it is to be resorted to in the trial of the summons case it must fit in somewhere in Chapter 20. I am afraid such an approach would wholly nullity the overriding power conferred on the court by sec. 540. In the Criminal Procedure Code different procedure has been provided for trial of summons case warrant case session case and summary case and in each such trial situation may arise where the court may have to take resort to sec.. 540. It would be an exercise in futility to take up sec. 540 and try to fit it into various stages of such different procedures. Sec. 540 must be read by itself. The court may be proceeding with any inquiry or any trial or any other proceeding. In a case tried according to the procedure prescribed in Chapter 21 for the trial of warrant case instituted upon a complaint sec. 252 requires that the complainant shall be examined and thereafter the witness shall be examined. Next stage is framing of a charge. Stage hereafter is recalling prosecution witnesses already examined for further cross-examination. If the accused is discharged the matter ends there. After all the witnesses of the prosecution are cross-examined it would be open to the prosecution to examine further witnesses and after their cross-examination is over accused is called upon to enter his defence. Now if the court moves from one stage to another as set out in secs. 252 253 254 256 and 258 and if each stage is immutable for any purpose sec. 540 would be rendered nugatory. These are various stages through which trial would proceed. But whenever a question arises a whether a material witness should be examined or evidence of such a witness is essential for the just decision of the case the court can resort to sec. 540. This is the overriding effect of the provision contained in sec. 540. If this is the proper interpretation of sec. S40 the contention of Mr. Majmudar that as the case was set down for framing of a charge after the complainant dose his case it was not open to the court to entertain an application given by the accused is without any substance.