minal Appeal No 217 of 1966
Appeal by special leave from the judgment and order dated September 16 1966 of the Bombay High Court in Criminal Appeal No 1349 of 1965
R Jethamalani N H Hingorani and K Hingorani for the appellant
D R Prem and section P Nayyar for the respondent
The judgment of the Court was delivered by Hidayatullah J
On November 16 1964 the shop of the ap pellant Govani situated in Suklaji Street Bombay was searched by the Enforcement Branch of the Reserve Bank of India
Nothing incriminating from the point of view of the Reserve Bank was found in the shop but a large number of watches clocks cigarette lighters cameras transistors tape recorders etc were found
The officers of the Enforcement Branch appear to have informed the customs authorities
The Assistant Collector of Customs thereupon issued a warrant for the search of the premises under section 105 of the 
This warrant was made out in the name of Preventive Additional Chief Inspector R C Dutta Preventive Inspector P N Ramchandani and Preventive Officers Ranade Thakur and Menon
It was stated in the warrant that there were 417 reasons to believe that prohibited and dutiable goods liable to confiscation and documents and things useful for and relevant to the proceedings were secreted in the shop
The officers were accordingly charged with the duty to search and seize such prohibited and dutiable goods documents and things in the shop under section 110 of the Act
The search was effected and the goods above mentioned were seized
Some of the watches were returned as they were old and given for repairs
The other watches were seized
Proceedings for the confiscation of the goods and for penalties were started by Dutta and a summons under section 108 of the Act was issued to Govani
He could not prove that the goods had borne the necessary customs duties
The Additional Collector of Customs Bombay thereupon sanctioned his prosecution under section 135b of the Act
The trial took place before the Presidency Magistrate 19th Court Bombay
Govani was charged on two counts under
135a and section 135b of the 
Two witness es were examined at the trial
Preventive Officer Customs Ranade deposed to the seizure of the goods
As the search was under the direction of Dutta Ranade admitted in cross examination that he was told by Dutta that information had been received that Govani had secreted some contraband articles in his shop
He admitted that Dutta decided which of the watches were to be seized and which were to be released
Ranade however stated that he had asked Govani to produce bills regarding the watches but Govani produced none
He had also asked Govani to produce the account books but Govani again did not produce any
The second witness Nanvani only proved the seizure of the contraband goods and the exhibits in the case
He was not cross examined
Govani did not lead any evidence in his own behalf
He was examined under section 342 of the Code of Criminal Procedure and admitted that he had neither imported the watches nor paid customs duty on them
He stated that he had purchased the watches from certain customers sometimes one and sometimes two or three from the same customer
He had no defence evidence to lead but filed a written statement and claimed that no offence had been disclosed against him in the prosecution case as laid before the court
He analysed section 135 of the Act and stated that the gist of the offence was that he should have known or have had reason to believe that the contraband goods had not been customed
He stated that under section 123 of the Act the burden would have been on him to prove that the goods had been customed provided the goods had been seized under the Act in the reasonable belief that they were smuggled goods but no witness had deposed to such belief
This statement was filed on July 15 1965
The following day the prosecution applied for the examination of Dutta Inspector of Customs Bombay as a court witness in the interests of justice
418 This application was opposed by Govani
The Magistrate however by his order dated July 26 1965 ordered the examination of Dutta under section 540 of the Code
Dutta stated that he had seized the watches in the reasonable belief that they were smuggled
Govani was thereafter examined again and was given an opportunity to lead defence evidence
He stated that he had nothing further to add and no defence evidence to lead
The Magistrate
after considering the arguments convicted Govani under sections 135a and 135b of the awarding him a sentence of one year s rigorous imprisonment and a fine of Rs 2000 in default further rigorous imprisonment for six months on each of the two counts
The watches were also ordered to be confiscated
Govani appealed to the High Court
His main contention was that the evidence of Dutta was improperly received by the Magistrate and should be excluded from consideration
The High Court rejected these contentions and accepting the testimony of the witnesses on facts upheld the conviction
Govani now appeals to this Court by special leave
The grant of special leave is limited to the questions whether the evidence of Dutta was improperly received by the Magistrate and whether if excluded the conviction of Govani can be supported
The question falls to be considered under section 540 of the Code of Criminal Procedure
That section is to be found in Chapter 46 of the Code among several others which have been appropriately described in the heading to the chapter as miscellaneous 
It provides   section 540  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 reexamine any such person if his evidence appears to it essential to the just decision of the case
 The section gives a power to the court to summon a material witness or to examine a person present in court or to recall a witness already examined
It confers a wide discretion on the COURT to act as the exigencies of justice require
Another aspect of his power and complementary to it is to be found in section 165 of the Indian Evidence Act which provides  section 165  The Judge may in order to discover or to obtain proper proof of relevant facts ask any question he pleases in any form at any time of any witness or of the parties about any fact relevant or irrelevant and may order the production of any document or 419 thing and neither the parties nor their agents shall be entitled to make any objection to any such question or order nor without the leave of the Court to crossexamine any witness upon any answer given in reply to any such question These two sections between them confer jurisdiction on the Judge to act in aid of justice
The Presidency Magistrate Esplanade in dealing with the petition to call Dutta passed an order on July 26 1965 in which he remarked that there was no gap or lacuna in the prosecution case to fill because Dutta was named as one of the witnesses and as the officer who had seized the watches
He held that the evidence of Dutta was necessary for the just decision of the case
He accordingly granted leave for the examination of Dutta
In view of the fact that he spoke in the language of the second part of section 540 it is reasonable to think that he exercised the powers conferred on him under the second part although his order is not clear as to which part he had in mind
He however ruled that Govani would be further examined under section 342 of the Code of Criminal Procedure and allowed to lead further evidence
This action of the Magistrate which was approved by the High Court is challenged before us
It is submitted that the powers under section 540 however wide must be reconciled with the mandatory requirements of Chapter 21 laying down the procedure of trial of warrant cases by Magistrates
It is pointed out that the trial had gone through the stage of taking evidence for the prosecution section 252 framing of the charge section 254 recording of the plea section 255 and the defence section 256 of the accused and as Govani did not wish to lead evidence
section 257 it had reached the stage of section 258 and the court could either acquit or convict him
It is therefore submitted that the Magistrate had really allowed the prosecution to fill a gap in the case which had the effect of dispensing with the burden which was on the prosecution to prove the case under section 135 a and b of the and of placing the burden upon Govani to rebut the presumption that the goods were smuggled
This it is said is not only unfair but unjust and cannot be regarded as falling within the powers of the court however wide the language of the section
We shall consider these objections and refer to the rulings which were cited before us in support of them
To begin with we do not accept as sound the argument that Chapter 21 must limit the powers under section 540
Offences under he Code of Criminal Procedure are tried in different ways according to their gravity
There are thus trials of summons and war5 Sup
CI67 13 420 rant cases by Magistrates trials before High Courts and Courts of Session and summary trials
All these trials have their procedure laid down from one step to another till the stage is reached for acquittal or conviction
If the argument advanced on the basis of the procedure laid down in Chapter 21 is accepted there would be no room for the exercise of the power under section 540 because it would always be impossible to fit it into any chapter without doing violence to the sequence established there
Section 540 is intended to be wide as the repeated use of the word any  throughout its length clearly indicates
The section is in two parts
The first part gives a discretionary power but the latter part is mandatory
The use of the word may  in the first part and of the word shall  in the second firmly establishes this difference
Under the first part which is permissive the court may act in one of three ways  a summon any person as a witness b examine any person present in court although not sum moned and c recall or re examine a witness already examined
The second part is obligatory and compels the Court to act in these three ways or any one of them if the just decision of the case demands it
As the section stands there is no limitation on the power of the Court arising from the stage to which the trial may have reached provided the Court is bona fide of the opinion that for the just decision of the case the step must be taken
It is clear that the requirement of just decision of the case does not limit the action to something in the interest of the accused only
The action may equally benefit the prosecution
There are however two aspects of the matter which must be distinctly kept apart The first is that the prosecution cannot be allowed to rebut the defence evidence unless the prisoner brings forward something suddenly and unexpectedly
This was laid down by Tindal CJ in
words which are oft quoted  There is no doubt that the general rule is that where the Crown begins its case like a plaintiff in a civil suit they cannot afterwards support their case by calling fresh witnesses because they are met by certain evidence that contradicts it
They stand or fall by the evidence they have given
They must close their case before the defence begins but if any matter arises ex improviso which no human ingenuity can foresee on the part of a defendant in a civil suit or a prisoner in a criminal case there seems to me no reason why that matter which so arose ex improviso may not be answered by contrary evidence on the part of the Crown Reg
vs Frost1
There is however the other aspect namely of the power of the Court which is to be exercised to reach a just decision
This power 1 at 386
421 is exercisable at any time and the Code of Criminal Procedure clearly so states
Indeed as stated by Avory J in Rex vs Dora Harris1  The cases of Reg
vs Chapman  and Reg
vs Holden  establish the proposition that the presiding judge at a criminal trial has the right to call a witness not called by either the prosecution or the defence if in his opinion this course is necessary in the interests of justice
It is true that in none of the cases has any rule been laid down limiting the point in the proceedings at which the judge may exercise that right However the learned Judge points out that injustice is possible unless some limitation is put upon the exercise of that right and he adopts for that purpose the rule laid down by Tindal CJ in Reg
vs Frost2 even in those cases where a witness is called by the Judge after the case for the defence is closed and states that the practice should be limited to a case where the matter arises eximproviso which no human ingenuity can foresee on the part of a prisoner otherwise injustice would ensue and cites the case of Reg
vs Haynes3 where Bramwell B refused to allow fresh evidence to be gone into after the close of the whole case
In Dora Harris s1 case five persons were tried two for stealing and they pleaded guilty and three others for receiving who pleaded not guilty
The first two remained in the dock and the trial proceeded against the other three
They gave evidence on their own behalf and the prosecution case was not quite strong
The Recorder then asked one of the other two accused to give evidence and allowed the prisoner Dora against whom the evidence went to cross examine him but did not ask Dora to enter the box again to contradict the new evidence
This was held by the Court of Criminal Appeal to be a wrong exercise of the power of the Court
It was an extreme example of the exercise of the power
Mr Jethmalani relies strongly upon this case and cites several decisions of the High Courts in India in which this dictum was applied
In particular he relies upon In re K V R section Mani4  Shreelal Kajaria vs The State5 and In re V Mahadevan6
In these cases it is laid down that the powers under section 540 of the Code of Criminal Procedure wide though they may be must not be exercised to the disadvantage of the accused particularly after his defence is over
There is nothing new in these cases
They follow in essence the decision in Reg
vs Frost2 as applied in Dora
Harris1 case
1 at 594
2 4St
NS 85 at 386
3 1859 1 F  F 666
4 ILR 1951 Mad
5 1 6 422 On the other side reliance is placed upon In re K K Narayanali Nambiar1 State vs Sheikh Mohamad Abdullah and others2 Ratnakar Das vs The State and others3 and Ramjeet and others vs State4 among others in which a liberal interpretation in favour of the court s powers is placed upon the section
It is not necessary to refer to the cases cited on either side
They illustrate the application of the general principle spoken to by Avory J in the extract from Dora Harris5 case and the condition laid down in Reg
vs Frost6 Dora Harris and Reg
vs Frost cases involved rebuttal of the defence evidence
In neither case was there any unexpected move by the prisoner and the evidence was therefore wrongly admitted
It is difficult to limit the power under our Code to cases which involve something arising eximproviso which no human ingenuity could foresee in the course of the defence
Our Code does not make this a condition of the exercise of the power and it is not right to embark on judicial legislation
Cases that go that far are of course not quite right
Indeed they could be decided on fact because it can always be seen whether the new matter is strictly necessary for a just decision and not intended to give an unfair advantage to one of the rival sides
Even in England where the rule in Dora Harris5 case obtains the powers of the Court have not been held to be wrongly exercised when fresh evidence has been let in for a just decision
In William Sullivan7 rebutting evidence was held to be properly called when the accused put forward a suggestion which could not have been foreseen and in John Mckenna8 it was held that a judge had complete discretion whether a witness should be recalled and that the Court of Criminal Appeal would not interfere unless it was made to appear that injustice had been caused
In that case like the one here the defence had closed the case and the accused had submitted that there was no case to go to the jury
It would appear that in our criminal jurisdiction statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in court or to recall a witness already examined and makes this the duty and obligation of the Court provided the just decision of the case demands it
In other words where the court exercises the power under the second part the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the court is right in thinking that the new evidence is needed by it for a just decision of the case
If the court has acted without the requirements of a just decision the action is open to criticism but 1 AIR 1942 Mad
3 AIR 1966 Orissa 102
5 at 594
7 2 4 ILR 1958 All 52
6 at 386
8 423 if the court s action is supportable as being in aid of a just decision the action cannot be regarded as exceeding the jurisdiction
In the present case the position is this
In 1955 by a notification under the Imports and Exports Control Act 1947 the import of watches clocks and parts thereof except under a licence was completely stopped Notification No 171955 dated December 7 1955 known as Imports Control Order 1955
Govani was found on November 16 1964 to be in possession of 305 watches of foreign make
The warrant of search issued by the Assistant Collector of Customs recited  Whereas there are reasons to believe that prohibited and dutiable goods liable to confiscation  are secreted in
Premises of Shri G K Gowani Shop No 20 Suklaji Street Bombay etc The watches among other articles were seized by Dutta
He separated the old watches from the new and asked to see any document which would show that the watches were legitimately imported
Govani produced no document although a summons under section 108 of the was served upon him
The watches were therefore seized
There was evidence to show that in 1963 1300 watches were seized from Govani s locker in a safe deposit vault but the prosecution then had resulted in acquittal
The Magistrate and the High Court were of opinion that these circumstances might lead to a reasonable belief in the mind of the person seizing the watches that they were smuggled
The prosecution examined Ranade Prevention Officer Customs who had assisted at the search but failed to examine Dutta who seized the watches and under whose direction the search was conducted
The question was why were the watches seized  They were obviously not seized because they were stolen property or belonged to some other person
They were seized after search on a warrant which expressed the belief that they were smuggled and after affording Govani an opportunity by notice to explain his possession
It is obvious that the just decision of the case required a finding whether they were smuggled or not
The circumstances already deposed to by Mukund Ranade and otherwise on the record clearly established that someone must have seized the watches entertaining a belief that they were smuggled
This belief obviously was entertained by Dutta
This was not a case in which the prosecution was trying to fill a gap in the pro secution case
The court was right in thinking that a just decision of the case required that the nature of the belief underlying the seizure should be before it on oath of the person making the seizure so that Govani might be required as the policy of the requires to prove his innocent possession
Govani had really no defence in view of the Control Order of 1955 and the gap of time between the promulgation of the order and the 424 date of the seizures
He admitted this before and after Dutta s evidence
In these circumstances it cannot be said that the court had exceeded its jurisdiction in acting under the second part of section 540 of the Code of Criminal Procedure
As Dutta s evidence was rightly taken and gone into and as Govani had no defence beyond taking advantage of the inadvertent omission the defence had no merit
The conviction was therefore rightly reached
The appeal fails and is dismissed
RKPS Appeal dismissed


Summary:
Upon a warrant issued under section 105 of the  the appellants  shop was searched and a number of watches clocks etc were seized
As he could not prove that the goods had borne the necessary customs duty the appellant was prosecuted on two counts under sections 135a and 13 5 b of the 
The appellant did not lead any evidence in his own behalf
He filed a written statement in which he claimed inter alia that no offence had been disclosed against him as under section 123 of the Act the burden would have been on him to prove that the goods had be en customed provided the goods had been seized under the Act in the reasonable belief that they were smuggled goods but no witness had deposed to such belief
The day after this statement was filed the prosecution applied for the examination of the Customs Officer who was in charge of the search as a court witness in the interest of justice
Although this application was opposed by the appellant the Magistrate ordered the examination of the officer under section 540 of the Code in the course of which he stated that he had seized the watches in the reasonable belief that they were smuggled
The appellant was thereafter examined again and was given an opportunity to lead defence evidence but he stated that he had nothing further to add and no evidence to lead
The trial court then convinced the appellant under Sections 135a and 135b
An appeal to the High Court against this conviction was dismissed
In the appeal to this Court by special leave the question for determination was whether the evidence of the officer was improperly received by the Magistrate and whether if excluded the conviction of the appellant could be supported
It was contended an behalf of the appellant that the powers under section 540 however wide must be reconciled with the mandatory requirements of Chapter 21 laying down the procedure of trial of warrant cases by Magistrates and that as the trial bad gone through the various stages and had reached the stages of section 258 the court could either acquit or convict him it was therefore submitted that the Magistrate had really allowed the prosecution to fill a gap in the case which had the effect of dispensing with the burden which was on the prosecution to prove the case under sections 135a and b of the Custom Act and of placing the burden upon the appellant to rebut the presumption that the goods were smuggled HELD  Dismissing the appeal The contention that Chapter 21 must limit the powers under Section 540 must be rejected
Offences under the Code of Criminal Procedure are 416 tried in different ways according to their gravity
The trials in the Magistrate s courts the High Courts and Courts of Session as well as summary trials have their procedure laid down from one step to another till the state is reached for acquittal or conviction
If the argument advanced on the basis of the procedure laid down in Chapter 21 was to be accepted there would be no room for the exercises of the power under section 540 because it would always be impossible to fit it into any chapter without doing violence to the sequence established there
419H 420B In the present case the trial Judge appeared to have exercised power conferred on him under the second part of section 540 ie to admit the evidence of the officer as essential to the just decision of the case
As die Section stands there is no limitation on the power of the court arising from the stage to which the trial may have reached provided the court is bona fide of the opinion that for the just decision of the case steps authorised by the Section may be taken
420D E It was obvious that a just decision in the present case required finding whether the watches etc seized were smuggled or not
The circumstances already on record clearly established that some one must have seized the watches entertaining a belief that they were smuggled and this belief obviously was entertained by the Officer in charge of the search
This was not a case in which the prosecution was trying to fill a gap in its case
The court was right in thinking that a just decision of the case required that the nature and the plea underlying seizure should be before it on oath of the person making the seizure so that the appellant might be required as the policy of the requires to prove his innocent possession
423F H Case law discussed