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TMI Blog1982 (1) TMI 215X X X X Extracts X X X X X X X X Extracts X X X X ..... nctionary of the office of the Chemical Examiner, to whom Constable Sadhu Ram had handed over the sample of opium, and with whom the sample had remained intact, till it went into the hands of the Chemical Examiner. Seemingly, (though not said in so many words by the learned Judicial Magistrate) this was necessitated by the prosecution on account of three Single Bench decisions of this Court reported as Tehal Singh v. State of Punjab, Criminal Revision No. 219 of 1979 decided on 20th Nov. 1980. Reported in (1981) 8 Cri LT 58 (Punj Har) Araarih Singh v. State of Punjab 1981 Chand LR (Cri) 608 and Atma Singh v. State of Punjab 1981 Chand LR (Cri) 612 (the latter two decisions rendered by me) where absence of such link evidence was held to be f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the record by any circumstances when the defence of the petitioner stood closed. Strength for the argument was sought from a few decisions of this Court which are presently being adverted to. 4. In Bhag Singh v. State of Haryana Criminal Revision No. 356 of 1971 decided on 13th July, 1971, B. S. Dhillon J. observed as follows: After taking into consideration the respective contentions of the learned Counsel for the parties, I am of the opinion that this petition must succeed. No doubt the Supreme Court case reported as Jamatrai Kewalji Govani v. State of Maharashtra (supra) lays down that the powers of Magistrate under Section 540 of the Criminal Procedure Code are too wide and in a given case if the learned Magistrate comes to the concl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... feel that the import of Govani's case of the Supreme Court afore-referred to has not been fully appreciated in the aforementioned decisions of this Court And the powers conferred on the Court under Section 311 of the Code of Criminal Procedure, 1973 (Sec. 540 of the old Code) and Section 165 of the Indian Evidence Act, which two sections between them confer jurisdiction and wide powers on the Judge to act in aid of justice, have aimlessly been curtailed' therein. 6. At page 181 (of AIR) : (at pp. 233, 234 of Cri LJ) in Jamatrai Kewalji Govani's case (supra), the Supreme Court quoted the words of Tindal, C.J. in Reg v. Frost (1840) 4 St. Tr. (NS) 85 at p. 86 reflecting one aspect, which are as under: There is no doubt that the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be put on the exercise of that right by the Judge and applying the rule laid down by Tindal C.J. aforequoted, opined that the practice should be limited to a case where the matter arises ex improviso which no human ingenuity could foresee, on the part of a prisoner, otherwise injustice would ensue, but otherwise fresh evidence could not be allowed after the close of the whole case. Indian Courts in In re. K.V.R.S. Mani AIR1951Mad707 and Shreelal Kajana v. State AIR1964Bom165 applied the principle of the case of Dora Harris holding that the powers under Section 540 of the old Code of Criminal Procedure, though wide, must not be exercised to the disadvantage of the accused, particularly after his defence is over. And these decisions were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed single Judges of this Court have gone on the assumption that the Madras and Bombay cases were seemingly approved by the Supreme Court in Jamatrai Kewalji Govani's case (supra). Thus, with due respect to the learned Judges it seems to me that a discarded principle has been taken to be alive and kept followed to the effect that the Court power under Section 311 of the Code of Criminal Procedure, 1973 stands ousted altogether when the defence is closed by the accused. But it appears to me that interests of justice and all steps in aid of it have to remain paramount. These cannot be dwarfed or hurdled even by Judge-made law. Thus, it is the law as laid down by the Supreme Court which I am obliged to follow, and which I do. distinguishing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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