ORDER
(1) This reference by the learned Sessions Judge, Nagpur, in Criminal Revision Application No. 101 of 1966 arose in the following manner.
(2) The accused Bhanuprasad was being tried for the alleged offence under Section 409, Indian Penal Code. One Sitalprasad Havildar of Nagpur Central Prision was examined as a prosecution witness on 15th September 1966. He was examined, cross-examined, and discharged. Thereafter some other evidence was recorded on the same day and at the end of the day, the Police Prosecutor who was conducting the case on behalf of the prosecution, filed an application seeking permission of the Court to recall the witness Sitalprasad Havildar and to contradict the said witness with his statement recorded by the investigating officer during investigation.
(3) This application was opposed on behalf of the accused as it would cause prejudice to the case. It was contended on behalf of the accused that this witness could not be recalled at the instance of the Prosecutor to afford him an opportunity to contradict him under Section 162 of the Code of Criminal Procedure. Accepting the request of the Police Prosecutor, the learned Magistrate granted the application for recalling the witness Sitalprasad Havildar. The accused therefore filed a revision application before the Sessions Judge, Nagpur, challenging the said order.
(4) It was contended on behalf of the accused that the aforesaid witness was examined-in-chief by the Police Prosecutor. He was cross-examined on behalf of the accused and his examination had been completed and he was also discharged by the Court. It was also contended that some questions were also put to this witness by the learned. Magistrate, and thereafter he was discharged. It was further urged that some more witnesses were also examined on behalf of the prosecution after the close of the evidence of this witness Sitalprasad. It is next contended that since this witness was discharged after examination, he ceases to be a witness for the prosecution and if the said witness is further recalled at the instance of the Court, he could not be called a prosecution witness and would be a witness recalled under Section 540 of the Code of Criminal Procedure, and thus would be a Court witness. On this basis a further argument was based that if the aforesaid witness would be a Court witness, then he could not be contradicted with any statement made by him under Section 162 of the code, and since the prosecution wanted this witness to be recalled only for the purpose of contradicting him with his earlier statement under Section 162 of the Code, the said witness should not have been recalled by the learned Magistrate.
(5) The learned Sessions Judge has taken the view that the witness after he was recalled does not become a witness on behalf of the prosecution, but he is to be examined as a Court-witness under Section 540 of the code, and therefore he could not be contradicted with any statement made by him under Section 162. The learned Judge therefore differed from the decision of the learned Magistrate and has made this reference to this Court recommending that the order of the learned Magistrate should be quashed.
(6) It may be useful at this stage to reproduce the provisions of Section 162 and Section 540 of the Code of Criminal Procedure. Only the proviso to Section 162(1) needs to be stated as that alone is relevant for the purposes of this case. It reads:-
'Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872, and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.'
Section 540 reads thus:-
'Any Court may, at any stage of any inquiry trial or other proceeding under this Code, summon any person as a witness or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case'.
(7) Under the proviso to Section 162 (1) the accused is given a right to use the previous statement of a prosecution witness made to the police, for the purpose of contradicting such a witness at the trial by such previous statement, and the prosecution can also use such a statement to contradict its own witness if permission is granted by the Court, otherwise not. In the present case, the prosecution asked for permission of the Court to contradict the prosecution witness Sitalprasad, and the learned Magistrate gave such permission to the prosecution. If such permission was asked for and had been given by the learned Magistrate, while the prosecution witness Sitalprasad was in the witness-box, there would have been no difficulty as Section 162(1) proviso would have covered the said matter fully. The difficulty, however, arises from the fact that no such permission was asked for by the prosecution or given by the learned Magistrate while the witness Sitalprasad was in the witness-box in the first instance. This witness was examined-in-chief on behalf of the accused, certain questions were put to this witness by the Court, and thereafter this witness was discharged. Permissioner, however, was asked for on behalf of the prosecution to further recall this witness and permit the prosecution to put his previous statement to the witness for contradicting him. This application was evidently made under Section 540 of the ??Code of Criminal Procedure. Under this provision the Court is given wide powers to summon any person as a witness or examine any person in attendance though not summoned as a witness or to recall and re-examine any person already examined, and this can be done by the Court at any stage of the inquiry or trial or other proceedings under the Code, and the Court is enjoined to summon and examine or recall and re-examine any such person if his evidence appears to be essential to the just decision of the case. It is under these powers under Section 540 that the learned Magistrate thought it fit to recall the prosecution witness Sitalprasad on the request made in that behalf by the prosecution.
(8) There can be no doubt that if a witness on being recalled continues to be a witness on behalf of the prosecution, the right given to the prosecution under Section .... proviso can be exercised by the prosecution with the permission of the Court. In the same manner, if such a witness cannot in any sense be a witness for the prosecution but can be called only as a Court-witness, then the provisions of Section 162(1) proviso cannot be made use of on behalf of the prosecution. It has been held in a number of cases that the provisions of Section 162(1) proviso of the Code of Criminal Procedure are not applicable to a witness who is either a witness for the accused or a Court-witness. I will only refer to a passage in this connection from the decision of their Lordships of the Supreme Court in Tahsildar Singh v. State of U. P. : 1959CriLJ1231 , in which it is stated;-
'It (statement under Section 162) cannot be used for corroboration of a prosecution or a defence witness or even a Court witness. Nor can it be used for contradicting a defence or a Court witness. Shortly stated, there is a general bar against its use subject to a limited exception in the interest of the accused, and the exception cannot obviously be used to cross the bar'.
(9) The only question, therefore, that needs consideration in the present case is whether the said witness who was recalled by the Court granting the application on behalf of the prosecution, can be a witness for the prosecution or a Court-witness as contended on behalf of the accused.
(10) Sections 137 and 138 of the Evidence Act deal with examination of a witness and the different stages of the evidence of a witness. The examination of a witness by the party who calls him is called examination-in-chief. The examination of a witness by the adverse party is called cross-examination, and the examination of the witness subsequent to the cross-examination by a party is re-examination. Section 138 the prescribes the order in which the witness is to be examined. It says, the witness shall be first examined-in-chief, then if the adverse party so desires, cross-examined, and then, if the party calling him so desires, it can get him re-examined. The aforesaid provision, therefore, lays down a procedure as to how a witness called on behalf of a party is to be dealt with at the trial and the order in which the witness has to be examined by each party to the trial. Section 540 of the Code of Criminal Procedure deals with three kinds of cases and invests the Court with a power to deal with them. The first case is of a person not examined by any party and who is not present in Court, Such a person may be summoned by the Court to give evidence, in which case he will be summoned and examined by the Court. The second case is of a person who is present in Court though he is not summoned as a witness. In this case also the Court can examine such a person, and the third case is of a person who has already been examined in Court and the Court is invested with the power to recall that witness already examined, and to re-examine him. This power, however, can be exercised by the Court. if the evidence of such a person appears to the Court essential to the just decision of the case. It is in exercise of these powers that the witness Sitalprasad was recalled by the learned Magistrate for being re-examined. In the first two cases the person to be examined is not owned by either party. None of the parties wanted to examine such a person even though such a person in the first category might have been cited as a witness on behalf of a party, while in the third case the said witness at the time of his being examined was owned by a party, was examined by such party, cross-examined and discharged, and later on it was found that it was necessary to recall and to re-examine him. Some decisions were placed before me by the learned counsel for the accused in support of the proposition that if a witness is recalled by the Court exercising its power under Section 540 of the Code of Criminal Procedure, he does not thereby become a witness of the party who had originally summoned him, but becomes a Court witness. In particular, I have been referred to In re Koti Reddi, : AIR1960AP76 , Sheo shankar v. The State, : AIR1953All652 , Dahyabjai v. State of Gujarat, : 1964CriLJ472 , Inayat v. Rexm : AIR1950All369 , State v. Mohan Hira : AIR1960Guj9 , Hansraj Harjiwan v. Emperor and Mohammad Akbar v. Emperor .
(11) In my opinion none of these decisions bears out the contention of the learned counsel for the opponent. In : AIR1960AP76 , three persons were cited as eye-witnesses in the case by the prosecution but their statements were not recorded because the Public Prosecutor in the lower Court stated that they were not traceable. The witnesses therefore were not examined on behalf of the prosecution and when the case was heard in the High Court their Lordships in the interests of justice directed the lower Court to record the statements of these three witnesses, and remanded the case to the Sessions Judge for that purpose. The question arose whether these witnesses could be contradicted with their previous statements under Section 162 of the code of Criminal Procedure, and I was urged on behalf of the prosecution that they were witnesses for the prosecution while it was urged on behalf of the accused that they were Court witnesses and in that context their Lordships held that they were Court witnesses and could not be contradicted with their previous statements under Section 162. In : AIR1953All652 , a particular witness who was sought to be contradicted by his previous statement was examined as a defence witness and not as a prosecution witness, and under the provisions of Section 162 their Lordships directed that such use of the statement was forbidden.
(12) The decision in : 1964CriLJ472 , in fact deals with the scope of Sections 154 and 137 of the Evidence Act, and lays down that the Court can permit a party calling a witness to put questions in the nature of cross-examination at the stage of re-examination and the adverse party must be given further opportunity to cross-examine. the witness in such cases. In Fact, this decision does not deal with the question whether a person who is examined as a witness on behalf of the prosecution and is recalled after being discharged, becomes a Court-witness or a witness for the prosecution. : AIR1950All369 , brings out the powers of the Court under Section 540 of the Code of Criminal Procedure, and lays down that the Court is empowered to examine a witness for the just and proper disposal of the case irrespective of the fact that the prosecution or the defence has failed to produce some evidence in the case and the Court examines this witness neither to help the prosecution not to held the accused. : AIR1960Guj9 , dealt with the question whether a witness on behalf of the prosecution can be called to contradict the evidence given by the witness under the proviso to Section 162(1) of the Code of Criminal Procedure, without declaring him hostile and without his being cross-examined. This is again a case where the witness was in the witness-box when the question of contradicting the witness arose, and the learned Judge took the view that before permitting to cross-examine him it was not necessary to declare the witness hostile, but the party could be permitted to contradict the said witness without declaring him as hostile. The case that arises in the present case before me was not in contemplation before the learned Judge of the Gujarat High Court.
(13) In , which was cited on behalf of the State, the scope of Section 540 of the Code of Criminal Procedure was defined and it was held that Section 540 is usually associated with Court witnesses, but there is nothing in the section itself so to limit it, and it can apply also to witnesses for the prosecution as well as for the defence. The facts of this case disclose that the prosecution had put in a list of witnesses to be examined in the case, along with the challan. After some time the prosecution put in an additional list of witnesses, but no order was passed on that application. After the charges were framed and the cross-examination was proceeding, the prosecution again put in another list of 12 witnesses, out of which three were from the earlier list and 8 were new and one witness was cited to be recalled. The Special Magistrate who tried the case passed an order allowing these witnesses to be summoned and this order was challenged unsuccessfully before the Sessions Judge, and hence it came up in the High Court. It was contended that there was no provision in the Code by which the prosecution could file an additional list of witnesses, and the learned Magistrate could not have allowed the prosecution to examine all these additional witnesses on its behalf. It was contended in the revision before the High Court by the learned Advocate General that certain witnesses were cited, but on going through the papers he found that the police had omitted to mention certain necessary evidence, and it was contended that the Magistrate's action in summoning the extra prosecution witnesses was justified under Section 540 of the Code of Criminal Procedure. The contention before the learned Judge was that section 540 of the Code of Criminal Procedure was confined to court witnesses i.e. witnesses examined by the Court on its own behalf, and in that context it was observed by the learned Judge of the Nagpur High Court that one usually associates Section 540 with court witnesses but there is nothing in the section itself so to limit it and it could apply also to witnesses for the prosecution as well as to witnesses for the defence. This decision, goes against the contention of the accused.
(14) AIR 1948 Nag 209 was a case where certain accused were undergoing prosecution for certain offences and in challan certain witnesses were cited. However, only four witnesses were examined prior to the framing of the charge, and after the charge was framed certain prosecution witnesses had been further cross-examined and the Prosecutor stated that he did not want the other prosecution witnesses to be examined. Thereafter he defence witnesses were examined and the case was closed for arguments and thereafter fixed for delivery of judgment. On the date fixed for delivery of judgment the Magistrate, in pursuance of the defence complaint that the prosecution had deliberately given up prosecution witnesses, issued processes for the attendance of the remaining witnesses given up by the prosecution. It was held that the Magistrate was legally entitled to act as he did under section 540 of the Code of Criminal Procedure. In that case the question whether those witnesses should be treated as witnesses for the prosecution or witnesses for the defence or court witnesses was not mooted and no question of contradicting any such witness with his previous statement under section 162 of the Code of Criminal Procedure arose.
(15) No doubt. in the instant case the witness has been recalled by the order of the Court on an application made by the prosecution. This witness is not a new witness altogether whose evidence was thought necessary by the Court in the ends of justice. This witness was already summoned, examined and cross-examined in the case and he was needed by the prosecution for re-examination by putting him his previous statement to contradict the said witness. If a witness is neither sought by a party or sought but not examined, but is needed by the Court, for the just and fair disposal of the case, and if the Court summons or examines that witness., then such a witness would be termed as a court-witness as such a witness would be neither a witness for the prosecution nor for the defence. If however, a party calls a particular witness, examines him, he is examined by the adverse party and re-examined, if at all by the prosecution, and discharged, and thereafter because of certain inadvertent omission or for further consideration of any matter, that witness is further recalled and the Court grants such request and recalls that witness and that witness is further put into box, his evidence which was initially given is reopened, the discharge order is cancelled and the said witness is further examined in continuation of the examination already held. The evidence which the witness gives after being recalled will be a continuation of evidence which he has already given and this further evidence will be the same deposition of that witness and will be a part of the evidence already given. It could not be said that he is absolutely an independent witness and his further evidence is unconnected with the evidence already given by him. Therefore, even though this witness might have been recalled after being discharged already, at the instance of the prosecution, he will be a witness for the prosecution. It will be a different matter if the prosecution had not requested the recalling of this witness and the Court itself had found it necessary to recall this witness without there being any request on behalf of the prosecution. If that were the case then the prosecution could very well say that since it did not want this witness any further, the witness could not be treated as its witness, in which event the witness would be called a court-witness and will get that character. If the prosecution itself has applied for this witness being called, and on that request being granted that witness is further examined, in my view, such a witness will take the character of a prosecution witness and will not become a court-witness. In this view, the provisions of section 162(1) proviso of the Code of Criminal Procedure will be attracted and the prosecution with the permission of the Court will be entitled to put the previous statement of such witness to contradict the said witness within the limits prescribed by the Code of Criminal Procedure.
(16) On this view, I am unable to agree with the recommendation made by the learned Sessions Judge, and unable to accept the reference. The reference is therefore rejected.
(17) Reference rejected.