AVTAR SINGH Vs. STATE

JUDGEMENT

(1.) THE accused -Petitioner having filed a revision petition before the Sessions Judge, Ambala, questioning the legality of an order, dated 1st February, 1974, passed by the Judicial Magistrate, 1st Class, Ambala Cantt., under Section 540 of the Code of Criminal Procedure, 1898, the learned Additional Sessions Judge, Ambala, has, made this reference, recommending that the Judicial Magistrate's order may be quashed.

(2.) THE said order was made by the trial Magistrate allowing an application moved on behalf of the Prosecuting Sub -Inspector that he may be permitted to file an affidavit of Constable Bhoop Singh, so as to establish that he had taken the sample of opium from the police station to the office of Chemical Examiner, Haryana, Chandigarh. The proceedings before the Magistrate arose like this. The accused -Petitioner was in conscious possession of 2K -700 gms. of opium without any valid permit or license. The evidence of the prosecution was closed on 14th January, 1974 and the case was posted for defence evidence. On 29th January, 1974, the accused made a statement in the trial Court that he did not like to produce any evidence in defence. On the same day, the arguments were also concluded and the case was posted for orders on 31st January, 1974. On that day, an application was moved by the Prosecuting Sub -Inspector under Section 540 of the Code of Criminal Procedure, praying that the prosecution may be directed to file fresh affidavit of Constable Bhoop Singh or in the alternative the said constable may be examined as Court witness. This application was allowed by the trial Magistrate which was challenged in revision by the accused. In his reference to this Court, the learned Additional Sessions Judge recommended that the order of the trial Magistrate be quashed.

(3.) IT has no doubt been argued by Mr. Malik on the basis of the aforesaid decided cases that a person, who is an essential witness for the prosecution but whom the prosecution has for some reason or the other omitted to cite and examine as a witness on its behalf, is not a person who could properly be examined by the Court in exercise of its power under Section 540 and that such power ought not to be exercised for the purpose of what is described as filling up the loopholes or the lacunae in the prosecution evidence. These arguments, in my opinion, are of relevance only if the matter is to be examined from the point of view of the conduct of the prosecution or persons incharge of the prosecution and can scarcely be available when one considers the exercise in the interest of justice of its powers by the Court which can never be described as a partisan of either prosecution or the defence. The exercise of the power by the trial court under Section 540 of the Code of Criminal Procedure to the extent, it affect its ultimate decision of the case is undoubtedly open to correction in appeal or revision as the case may be. In the majority of cases, the question whether such power has been rightly or wrongly exercised by the trial Court can be fully and properly examined and correctly decided after the conclusion of the trial rather than at an interlocutory stage.