MOHAMMAD SHAFI Vs. STATE

JUDGEMENT

(1.) This is an application by Mohatnmad Shafi who was a complainant in a criminal case. This case, which was filed by him before a Magistrate, was under Sections 379/147/504/ 503, I. P. C. against the opposite parties. During the course of the trial, the complainant examined himself and after his examination was over --both examination and cross-examination -- it appeared that some documents which were relevant to this case had nob been produced by him, nor had they been proved. Consequently an application was moved on his behalf on 2-12-1950, seeking permission to put in the documents and to prove those documents by oral evidence. In this application it was stated that the complainant should be called Under Section 540, Criminal P. C. for the aforesaid purpose. Objection was made on behalf of the accused to this request by the complainant. The learned Magistrate disposed of the application and the objection on 28-12-1950 in the following words :

(2.) The question which calls for determination is whether the complainant had a right to examine himself at length in relation to the documents which he had been permitted, to produce and prove under the powers conferred by Section 540, Cr. P. C. We have already quoted at length the order which the learned Magistrate made on the application of the complainant and from it, it would appear, that the learned Magistrate permitted the complainant to re-examine himself only to the extent to which it was necessary to prove the documents which he was permitted to file at that stage.

(3.) Section 540 Criminal P. C. gives the Court a discretion to summon any person as a witness who has been not summoned by any party or to examine a witness who is in attendance, or to recall a witness who has already been examined.. This section does not confer a right in any party to examine, re-examine or cross-examine any witness. It is also clear from the words of this section that no party has a right to claim action under Section 540, Cr. P. C. It is entirely discretionary in the Court in the interests of justice to take action or not to take action under this section. The right to cross-examine a witness who is called by a Court -- a witness who is not one who has been summoned by any party -- arises not under the provisions of Section 540, Cr. P. C., but, under the Evidence Act which gives a party the right to cross-examine a witness who is not his own witness. Since a witness summoned by the Court could not be termed a witness of any particular party, therefore Courts have given the right of cross-examination to both the parties in respect of such a witness. A witness who is recalled under Section 540 at his own instance, cannot claim to cross-examine himself under the provisions of the Evidence Act, for Section 137 states what is meant by examination-in-chief and what is meant by cross-examination and re-examination. The section is in these words :