This is a reference under section 438, Cr. P. C. By the learned Second Additional Sessions Judge, Hyderabad, recommending that the order dated 9th September 1967, passed by the learned City and S. D. M., Hyderabad, whereby the learned Magistrate ordered that one Mst. Fatima Begum be summoned as a witness under section 540, Cr. P. C. In a case under section 420, P. P. C. Pending against the respondents, be quashed.
2. The prosecution case against the respondents was that Mst. Fatima Begum, P. W. 2, who was a displaced person had received a Compensation Book No. 91786/HDR/III-500, from the. Deputy Settlement Commissioner, Hyderabad, for a Deferred Payment Claim for Rs. 8,100,00. She had given the Compensa--tion Book to her husband complainant Mahmood Ali alongwith a power-of- attorney in his favour. Respondent No. 2, namely, Ibrahim was a peon in the Settlement Department and was known to the complainant as they used to meet at the shop of one Abdul Ghafoor. On 20- 1-1961, respondant Ibrahim got this Compensa--tion Book from the complainant in presence of P.
W. Abdul Hamid and Ahmed Ali on the pretext that he would get him a house on the basis of his wife's Deferred Payment Claim. The com--plainant thereafter went to the office of the Settlement Department where Ibrahim introduced him to respondent No. 1 Abdul Hamid who took Rs. 100.00 from him and issued him a receipt for the Compensation Book (Exh. 1 /A) and a chit (Exh. 1/B). The respondents kept the complainant on false- hopes for several months without doing anything for him, with the result that on 5-5-1962, the complainant made an application to the Superinten-- dent of Police, Hyderabad for taking action under sections 420 and 406, P. P. C. Against the respondents. This application was endorsed to the S. H. O., City Police Station, Hyderabad, who registered a report against the respondents under section 420, P. P. C. And after conducting the usual investigations challaned them in the Court of Second Extra Joint Civil Judge and First Class Magistrate, Hyderabad, from where the case was subsequently transferred to the file of City and S. D. M., Hyderabad.
3. The defence of both the respondents was one of denial. Respondent Abdul Hamid admitted that he had given receipt Exh. I/A to the complainant but stated that he had purchased the Compensation Book from Mst. Fatima Begum who had executed a Special Power-of-Attorney (Exh.
2/A) in his favour, and the payment was made to Mst. Fatima Begum in presence of an Oath Commissioner, vide receipt Exh. 2/B. Abdul Hamid admitted that the deal was arranged through respondent Ibrahim Hamid and further stated as follows.-- "Muhammad Ibrahim accused had brought Mst. Fatima wife of Mahmood Ali and offered the sale of Compensation Book amount in the name of Mst. Fatima. I agreed to purchase. I got prepared the documents which were signed and executed before Oath Commissioner. I made the payment then and there in presence of Oath Commissioner."
Respondent Muhammad Ibrahim's statement was also to the same effect.
4. At the trial the prosecution case was supported by the evidence of complainant Mahmood Ali P.
W. 1 and his wife Mst. Fatima Begum, P. W.
2. Abdul Waheed P. W. 3 and Ahmed Ali P. W. 4 corroborated the evidence of the complainant and stated that he gave the Compensation Book to respondent Ibrahim in their presence. The evidence of P. W. 5 Muhammad Alam, who was a mashir and the two investigating officers, namely Ghulam Abbas and S. H. O. Muhammad Sirajuddin was more or less of a formal nature.
5. Mst. Fatima Begum denied in her cross-examination that the special Power-of-Attorney, Exh. 2/A and the receipt Exh.. 2/B bore her thumb-impression; thereby suggesting, that both these documents were forged.
The respondents on the other hand examined D. W. Ramesh, an Advocate in their defence. He stated that his father Moolchand who died on 14th October 1965, had attested Exhs. 2/A and 2/B in his capacity as an Oath Commissioner at Hyderabad. The witness, however, admitted in cross- examination that he did not personally know Mst. Fatima Begum, nor did the attestation take place in his presence. In other words, the witness was not in a position to state whether Mst. Fatima Begum was the same person who had put her thumb-impression on these two documents.
6. In view of the statement of the accused that Mst. Fatima Begum had duly executed a special Power of Attorney (Exh. 2/A) in favour of Abdul Hamid and that a receipt, Exh. 2/B was also issued by her to this respondent, the decision of the case depended to a large extent on the fact whether this special Power-of-Attorney, Exh. 2/A and the receipt Exh. 2/B were genuine as stated by respondent No. 1 or they were forged as deposed to by P. W. Fatima Begum.
The learned Magistrate after hearing the arguments adjourned the case for pronouncement of judgment. It, however, appears that he could not make up his mind on the basis of evidence already on record ; and consequently, 'after issuing notice to both the parties and hearing the P: S. I.
For the Prosecution and Mr. Channa, Advocate for the accused (respondents) he ordered that Mst.
Fatima Begum be recalled and her thumb-impression be obtained so that it could be sent along with Exhs. 2/A and 2/B to a Handwriting Expert for his opinion whether the thumb-- impressions on- these documents were those of Mst. Fatima Begum as stated by the accused or of someone else as- alleged by the prosecution. This order dated 9th September 1967, of the learned City and S. D.
M., Hyderabad was challenged by respondent No. 1 in a revision petition under sections 435 and 439, Cr. P. C. Filed by him in the Sessions Court at Hyderabad. The contentions raised by him found favour with the learned Second Additional Sessions Judge, Hyderabad, who, by his order dated 30th March 1968, has recommended that the aforesaid order of the learned City and S. D. M. Be quashed by this Court on the grounds that- "the learned Magistrate in deciding to send the thumb-- impression of Mst. Fatima alongwith Exh.
2-A and Exh. 2-B to the Handwriting Expert for his opinion, has obviously tried to fill up the gap of the prosecution as also to bring a new evidence of the Expert on record which is likely to prejudice the interest of the petitioner-accused."
The learned Additional Sessions Judge further observed as follows :- "In the instant case the learned Magistrate appears to have fished out the Handwriting Expert as a prosecution witness in order to bolster the prosecution case. The manner and the circumstance in which the learned Magistrate decided to have the opinion of the Handwriting Expert does not give a chance to the accused for rebutting the opinion if the same is given against the accused."
7. Mr. P. S. Channa, the learned counsel appearing on behalf of the respondents Nos. 1 and 2 before me has supported this order of the learned Second Additional Sessions Judge, Hyderabad and has further contended that apart from being incorrect the order of the City and S. D. M., Hyderabad was illegal as the learned Magistrate had no jurisdiction to recall Mst. Fatima Begum, who was already examined in the case as P. W. 2 as a Court witness, for the purpose of taking her thumb -- impression specially at this late stage of the case when even the arguments were heard and only the judgment was to be pronounc--ed. The learned counsel, however, could not cite any case-law in support of his contention. The learned counsel also contended that the powers under the above section can be exercised only when an enquiry or trial was continuing and not when it had closed.
In other words, the contention is that in this case after the evidence had been closed by the parties and the arguments had been heard the trial had ended and the judgment alone remained to be delivered. The learned counsel further contended that section 540, Cr. P. C. Did nor contemplate examination of a witness who had been already examined as a prosecution witness. Section 540, Cr. P. C. Reads as follows :- "Any Court may, at any stage of any enquiry, 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."
A bare reading of this section, would show, that it has been expressed in the widest possible terms and does not limit the discretion of the Court in any manner whatsoever. The discretionary power under this section can be invoked at any stage o enquiry or trial and any witness can be examined or a witness a ready examined can be recalled for further examination, if his evidence appeared to be essential to the just decision of the case.
8. The words "any person" appearing in section 162, Cr. P. C. Were the subject-matter of interpretation by their Lord--ships of the Privy Council in the well known case of Pakala Narayana Swami v. Emperor (AIR 1939 P C 47) wherein after citing with approval the observations of Lord Wensley dale in Grey v. Pearson ((1857) 6 H L C 61) rind those of Lord Halsbury in Income-tax Commissioner v. Pemsel (1891 A C 531) their Lordships reiterated the principle that when the meaning of words is plain it is not the duty of the Courts to busy themselves with supposed intentions. In the same case their Lordships observed as follows :- "It is inadmissible to consider the advantages or disadvantages of applying the plain meaning of the words under section 162, whether in the interests of the prosecution of the accused. The words `any Person' in their ordinary meaning would include any person though he may thereafter be accused.
It is an elementary rule of Interpretation of Statutes that when' the language of the statute is not only plain but admits of but one meaning, the task of interpretation can hardly be said to arise. It is not allowable to interpret what has no need of interprets-Pretation. Such language best declares, without more, the intention of the law given and is decisive of it, The rule of construction is to intend the Legislature to have meant what they have actually expressed". It matters not, in such a case, what the consequences may be.
In this connection I may also reproduce the following passage from Maxwell on the Interpretation of Statutes (10th Ed. 1953) at pp. 3-4 :- "The first and most elementary rule of construction is that it is to be assumed that 'the words and phrases of technical legislation are used in their technical meaning if they have acquired one, and, otherwise, in their ordinary meaning and, secondly, that the phrases and sentences are to be construed according to the rules of grammer. It is very desirable in all cases to adhere to the words of an Act of Parliament, giving o them that sense which is their natural import in the order in which they are placed'. From these presumptions it is not allowable to depart where the language admits of no other meaning. Nor should there be any departure from them where the language under consideration is susceptible of another mean--ing, unless adequate grounds, are found either in the history or cause of the enactment or in the context or in the consequences which would result from the literal interpretation, for concluding that that interpretation does not give the real intention of the Legislature. If there is nothing to modify, nothing to alter, noth--ing to qualify the language which the statute contains, it must be construed in the ordinary and natural meaning of the words and sentences. `The safer and more correct course of dealing with a question of construction is to take the words themselves and arrive, if possible, at their meaning without, in the first place, reference to cases'. "
9. There is ample authority for the proposition that a Magistrate can summon or recall any witness at any stage even after a trial comes to an end and the case is posted for judgment. In this connection I may refer to the case of Muhammad Akbar v. Emperor (AIR 1948 Nag. 209). In this case certain accused persons were under--going prosecution for certain offences. In the challan 13 witnesses were cited against them. Only 4 of these were, however, examined prior to the framing of the charge. After the charge had been framed and certain prosecution witnesses had been further cross-examined, the prosecutor stated that he did not want other prosecution witnesses to be examined. When the examination of the defence witnesses had ended the case was closed for arguments. Arguments were duly heard but on the date fixed for the delivery of judgment the Magistrate in pursuance of the defence complaint that the prosecution had deliberately withheld evidence issued process for the attendance of the remain--ing nine witnesses given up by the prosecution. It was on these facts held that the Magistrate was legally entitled to act as he did act under section 540, Cr. P. C. And that it could not be said that he acted in order to fill up lacuna in the prosecution case. In the same case it was also emphasised that the High Court would not interfere with the discretion exercised by the Magistrate.
This case was cited with approval by A. S. Chowdhury, J. In Nikunja Behari and others v. Nurul Absar and others (PLD 1963 Dacca 360 ). In Ina)-at and others v. Rex (AIR 1950 All. 369) it was observed as follows :- "The Code does not specify when a trial ends and even if we accept the argument of the learned counsel for the applicants that a judgment is no part of a trial, there is nothing to hold that a trial comes to an end before a judgment has been pronounced. In our opinion a trial is terminated by the pronouncement of a judgment, and so long as a judgment has not been pronounced a trial is not terminated, even though the judgment itself may not be a part of the trial. We are supported in this view by a recent decision of this Court in Channu Lal v. Rex AIR 1949 All. 692 (51 Cr. L. J. 199) where a Division Bench of this Court has held that the mere fact that judgment is not included in the word `trial' does not mean that trial finally concludes once the arguments 'are heard and that no witness can be examined after that point of time, even though the judgment has not been pronounced, and that the trial continues till the judgment is delivered. This was a case in which the meaning of the word `trial' had to be considered in connection with section 540, Cr. P. C."
On the above reasoning it was held, and if I may say so respect--fully, rightly, that the Court had jurisdiction to act under section 540, Cr. P. C. Before a case had been decided even though the parties may have concluded the evidence or argued the case.
Similarly in Mangat R.I v. Emperor (AIR 1928 Lah. 647), where the Magistrate feeling obscurity on certain points recalled certain witnesses and examined them after the defence had closed their case and even the arguments had been heard. It was held that there was no illegality in the procedure. It is no doubt correct that in some sections of the Cr. P. C. Such as sections 268, 366 and 497, the word "trial" has been used in a manner to exclude the judgment in the case, but that would be no reason why it should be similarly construed in section 540. This question was considered in detail in Inayat and others v. .Rex cited above, wherein it was observed as follows :- "It seems to us that the word "as not been used throughout the Code in the same sense. This conclusion is further fortified by a reference to the history of the law relating to criminal procedure."
Their Lordships of the Privy Council have made it clear in the case of Basil Ranger Lawrence v.
Emperor (AIR 1933 P C 218) that "trial" means "the whole of the proceedings including sentence". In this case their Lordships held that a sentence passed in the absence of the accused was totally invalid as the entire trial had to be conducted in his presence and the pronouncement of the judgment was also a part of the trial. Although there may be a few old cases to the contrary that the "trial" ends with the conclusion of arguments ; these would be distinguishable in view of what has been said above.
10. Judged in the light of these precedents there is no doubt that there was no limitation on the powers of the learned Magistrate and he could recall Mst. Fatima Begum for taking her thumb- impression and sending the same to the Handwriting Expert even after the conclusion of arguments when the case was posted for pronouncement of judgments.
11. The next contention of the learned counsel for the respondents is that the learned Magistrate has exercised the discretion arbitrarily inasmuch as he has tried to fill up the gaps in the prosecution case to the prejudice of the accused/reason--dents. This also seems to be the reasoning of the learned Second Additional Sessions Judge as can be seen from his order of reference.
Section 540, Cr, P. C. Consists of two parts, one giving discretionary power to the Court ; namely, that it may (a) summon any person as a witness, or (b) examine any person in attendance, though not summoned as a witness, or (c) recall and re-examined any person already examined.
The second part of the section imposes an obligation on the Court to summon and re-examine or recall and re-examine any such person if his evidence appears essential to the just decision of the case.
In this case the main issue involved was whether the thumb --impressions on Exhs. 2/A and 2/B were those of Mst. Fatima Begum as stated by the respondents, or these documents were forged as alleged by Mst. Fatima Begum herself, which was also the case of the prosecution. Normally, Moolchand, the Oath Commissioner, who is said to have attested these documents could have stated whether Mst. Fatima was the same lady who had put her thumb-impression on these documents or not but he died before he could be summoned, with the result that his son Ramesh had to be examined to prove that the signatures on these docu--ments were those of his father. D.
W. Ramesh, however, could not possibly establish that these documents bore the thumb -- impression of Mst. Fatima, as the alleged attestation had admit--tedly not taken place in his presence. This being the position, I feel that the learned Magistrate was not only within his powers, but indeed he acted rightly in recalling Mst. Fatima Begum for the purpose of having her thumb- impression and thereafter seeking assistance of a Handwriting Expert before deciding this point. "
12. The learned Second Additional Sessions Judge, however, appears to be under the impression that this order having been passed after the examination of accused-respondents under section 342, Cr. P. C. Was likely to prejudice them as they would not have a chance to rebut the opinion of the Expert in case it was against them. This can be seen from his observations reproduced in paragraph 6 above. I would, however, like to make it clear that in case the opinion of the Expert is prejudicial to the accused-respondents, it would be necessary, in any case desirable and proper for the learned Magistrate, to re-examine the accused with reference to the new evidence recorded by him and further to afford them an opportunity not only to explain the same but also to lead such further evidence in rebuttal as they think proper. The learned Magistrate shall also afford an opportunity to the accused or his counsel to address further arguments obi the evidence of the expert, if a request to that effect is made to him.
13. It was lastly contended that in view of the fact that this case has now been pending for the last seven years, the order of the learned Magistrate should not be upheld as it was likely to cause further delay in the disposal of the case.
A reference to the diary of the case would show that on 23-9-1967, the next date of hearing after the order dated 9-9-1967 was passed, the respondents filed an application for- adjournment d on the grounds that they were filing a revision petition challenging the order of the learned Magistrate.
The case was accordingly adjourned to 2-10-1967, when the respondents intimated to the Court that the said revision petition against this order had been filed. This being the position the learned Magistrate could not proceed further with the case. It would thus be seen from what is stated above that the respondents themselves were- responsible for the delay of more than two years, in the progress of this case. The learned counsel for the respondents cannot; therefore, con--tend that a legal and a valid order of the trial Magistrate should be set aside simply because they protracted the proceedings by seeking adjournment in order to challenge this order. I may also state in this connection that limitation does not apply to criminal D prosecutions and that the ends of justice cannot be defeated by consideration of delay alone. In this connection I cannot do better than to quote a passage from the judgment of the Supreme Court in the case of M. S. Khawaja v.
State (PLD 1965 SC 287) wherein their Lordships observed as follows :- "The view that time is of the essence for the competency of a criminal prosecution cannot be accepted as of universal ' application. Limitation does not apply to criminal prosecu--tions, and it is also inappropriate to examine questions of delay through the actions of the Government, or the prosecution authorities, as if they gave rise to equities, on the same footing as in a civil matter inter parties. Every prosecution for a criminal offence is to be deemed to have been commenced and continued in the public interest, as a duty of the Star. It can only be in a very rare case that a superior Court acting under its inherent power to prevent abuse of the process of any Court or otherwise to secure the ends of justice', would deem it appropriate to act so as to place an alleged offence outside the operation of the criminal law, on incidental grounds such as that of delay, or for any reasons other than reasons going to the question whether the allegation is sufficient to constitute an accusation of an offence in law."
These weighty observations would apply with full force to the present case.
14. For the reasons given above I am of the opinion that the order dated 9th September 1967, of the learned Magistrate is both legal as well as proper; and is unassailable on any ground: This reference is accordingly rejected.