MOHAN LAL SHAMLAL SONI versus UNION OF INDIA AND ANOTHER

Citation: [1991] 1 S.C.R. 712 · Decided: 22-02-1991 · Supreme Court of India · Bench: S. RATNAVEL PANDIAN · Disposal: Dismissed

Cited by 3 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

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MOHAN LAL SHAMLAL SONI 
V. 
UNION OF INDIA AND ANOTHER 
FEBRUARY 22, 1991 
[S. RATNAVEL PANDIAN AND K. JAYACHANDRA 
REDDY, JJ] 
Code of Criminal Procedure 1973-Section 311 (Corresponding-~­
to section 540 of the old code)-Summoning of person as witness-
Recall or re-examine of such person-Jurisdiction of Court-To be 
dictated by exigency of situation and fair play. 
Appellant's business and residential premises were raided by the 
Customs Department as a result whereof gold ingots with foreign 
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marks, gold ornaments silver bricks, coins and a cash of Rs. 79,000 was 
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seized. The Assistant Collector of Customs filed two separate comp- y---~ 
laints relating to the said incident against the appellant before the Judi-
cial magistrate, one for violating the provisions of Customs Act, 1962 
and the other under the Gold Control Act, 1968. In the trial, after the 
close of evidence by both sides, prosecution as also defence, arguments 
were advanced on behalf of the accused appellant. The prosecution at 
that stage before commencing its arguments filed two applications in 
both the cases, under Section 540 of the Old Code (corresponding to~ 
section 311 of the new Code) requesting the trial court to recall one 
witness viz., the Seizing officer, and issue summons to two more witD.es-
ses for examination either as prosecution witnesses or as court witnes-
ses. The trial magistrate rejected both the applications and the revision 
petitions preferred by the respondents against that order failed before 
the Sessfons Judge. The Union of India thereupon preferred two revi-
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sion applications before the High Court. The State of Gujarat also 
preferred separate revision applications before the High Court. The /~ 
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High Court allowed the revision petitions and directed examination of 
the three witnesses sought to be summoned. Being aggrieved the appel-
lant has filed these appeals after obtaining special leave against the 
decision of the High Court, in the revision appUcations filed by the 
Union of India. No appeal has been filed against the order passed by the 
High Court in the revision applications filed before it, by the State of 
Gujarat. The main contention of the appellant is that the High Court ,.,,/ 
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erred in allowing the second revision application in view of the provi-
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sions of section 397(3) of the new Code thus permitting the prosecution 
to fill up the lacuna and plug the loopholes in its case which is prejudi-
cial to the appellant. 
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M.L.S. SONI v. U.0.1. 
713 
Dismissing the appeals, this Court, 
HELD: Though Section 540 (Section 311 of the new Code) is, in 
the widest possible terms and calls for no limitation, either with regard 
to the stage at which the powers of the court should be exercised, or 
with regard to the manner in which they should be exercised, _ that 
power is circumscribed by the principle that underlines section 540, 
,.lnamely, evidence to be obtained should appear to the court essential to 
~ a -just decision of the case by getting at the truth by all lawful means. 
The aid of the section should be invoked only with the object of disco-
vering relevant facts or obtaining proper proof of such facts for a just 
~ decision of the case and it must be used judicially and not capricicously 
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or arbitrarily. Due care should be taken by the court while exercising 
power under this section and it must not be used for filling up the 
lacuna left by the prosecution or by the defence or to the disadvantage 
---f" 6f the accused or to cause serious prejudice to the defence of the accused 
or to give an unfair advantage to the rival side and further the addi-
tional evidence should not be 1·eceived as a disguise for a retrial or to 
change the nature of the case against either of the parties. [721B-E] 
Whenever any additional evidence is examined or fresh evidence 
is admitted against the accused, it is absolutely necessary in the 
l interests of justice that the accused should be afforded a fair and 
/"reasonable opportunity to rebut that evidence brought on record 
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against him. [725E] 
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The Criminal court has ample power to summon any person as a 
witness or recall and re-examine any such person even if the evidence on 
both sides is closed and the jurisdiction of the court and must obviously 
be dictated by exigency of the situation, and fair-play and good sense 
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~pear to be the only safe guides and that only the requirements of F 
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