Accused 1 to 3 in C.C. No. 17490 of 1978 on the file of the Second Metropolitan Magistrate. Madras, are the petitioners herein. They seek the quashing of an order passed by the said Magistrate in M.P. 2826 of 1979 allowing the application of the respondent-complainant for summoning a witness as court witness even before any evidence was adduced by the complainant himself.


2. The petitioners herein are officers in the Triplicane Urban Co-operative Society Ltd. (hereinafter referred to as T.U.C.S.) The respondent herein is a tenant in respect of a portion of the premises belonging to the T.U.C.S. She filed a complaint stating that she discovered that the petitioners had been collecting excess charges from her towards electricity charges for the portion occupied by her, that she refused to pay double the domestic rates as demanded by them that subsequently misunderstandings arose between herself and the petitioners and it ended in the petitioners disconnecting the electricity supply to her portion of the house with effect from 18-2-1978 and the issuing of a lawyer's notice dated 3-5-1973 terming the tenancy with effect from 31-5-1978. The respondent complained that the petitioners had committed offences under Sections 427, 506 read with Sections 34 and 109, I.P.C. and hence an action should be taken against them. After recording her sworn statement, the Magistrate took the case on file and issued process to the petitioners. After the petitioners entered appearance, the respondent filed M.P. 2826 of 1979 under S. 311. Cr.P.C. praying that one Rama Rao, building section clerk of the T.U.C.S. who was dealing with the files relating to the disconnection of the electricity supply should be examined as a court witness. The petitioners herein opposed the said application and stated that without letting in any evidence on her side the complainant was not entitled to move the court to have a person examined as a court witness. The objection of the petitioners have been overruled and the respondent's application has been allowed. In order to quash the order the petitioners filed this petition.


3. Mr. panchapakesan, learned counsel for the petitioners, contends that the court has no doubt ample powers under S. 311. Cr.P.C. to summon any person as a court witness at any stage of the case, but such exercise of power could be done only if the court has materials before it to hold that the evidence of some person should be essential to adjust decision in the case, and as such the said person should be summoned and examined as a court witness. In this case, the counsel would say the Magistrate has exercised his powers without warrant for it and as such the order is not legal. According to the counsel, there is absolutely no material on the basis of which the Magistrate would have deemed it fit to exercise his powers under S. 311 Cr.P.C. to summon the Building Section clerk to appear in court and give evidence as a court witness.


4. Arguing contra, Mr. G. Pannerselvan, learned counsel for the respondent, vehemently states that the terms of S. 311 Cr.P.C. are so wide that no fetters can be placed on the powers of the Court on technical grounds. Hence the counsel would only say that the Magistrate is perfectly entitled to summon any person to appear in court as a court witness and give evidence even without the complainant adducing evidence on her side. The second contention advanced by him is that in any event, the impugned order is an interlocutory one and no revision would lie against an interlocutory order. In support of his first contention Mr. Panneerselvam places reliance on Jamatrai v. State of Maharashtra, Pascal Fernandes v. State of Maharashtra. and Rameshwar Dayal v. State of U.P. In support of his second contention he places reliance on Raj Kapoor v. State.


5. For a determination of the first question, it is necessary to refer to the terms of S. 311 Cr.P.C. The section reads as follows -


"311. Power to summon material witness or examine person present :- Any court, 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 to be essential to the just decision of the case." *


In view of S. 311. Cr.P.C. the court may (1) summon any person as a witness. examine any person in attendance, though not summoned as a witness and (3) recall and re-examine any person already examined. It has to be noticed that the section is in two parts. The first part is discretionary, whereas the latter part is mandatory. As pointed out by the Supreme Court in Jamatrai v. State of Maharashtra,


"the use of the word 'may' in the first part and of the word 'shall' in the second part finally establishes this difference. Under the first part, which is permissive, the court may act in one of the three ways mentioned above. The second part is obligatory and comples the court to act in these three ways or in 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 in which the trial may have reached, provided the court is bona fide of the opinion that for the just decision of the case, this step must be taken" *


. Therefore, there is a perceptible difference between the two parts of the section. The Court has discretion to exercise its powers under the first part, but it is under a duty to examine witnesses under the second part. In view of this, it follows that if the Court exercises its discretion under the first part it should do so in a judicial manner and not in an arbitrary or whimsical manner. In the instant case, if we scrutinise the order of the learned Magistrate, it is how the order proceeds :

"The learned counsel appearing for the complainant argues before me that the steps taken by the accused 1 and 2 are in black and white available in the files maintained by T.U.C.S. Ltd., and Ramarao who is employed in T.U.C.S. as a Building Section clerk alone is capable of speaking about the communications written in the files and therefore he is a material witness to be examined in this case. He also would argue that as the said Ramarao is employed in T.U.C.S. Ltd., in which the accused 1 and 2 are employed as officers, the complainant cannot expect to summon the said Ramarao as her witness because he may not support the complainant and the complainant will lose the opportunity of cross-examining the said Ramarao. Therefore, on these grounds the learned counsel for the complainant requested the court to summon the said Ramarao as a court witness.


But the learned counsel appearing for the accused argued that even before examining the witnesses on the complainant's side, the court need not exercise the discretion of summoning a Court witness because the complainant has not made out a prima facie case against these accused and therefore this petition has to be dismissed. It is no doubt true that the complainant has not examined any witness on her side and yet her evidence has to begin. But it is represented before me by the complainant's counsel that as the evidence in this case is confined to the correspondence in writing, the oral evidence on the prosecution side will be confined to the controversies after the examination of the said Ramarao, the Building Section clerk. He also argued that the said Ramarao knows about the orders passed by A. 1 and A. 2 in the office files and therefore, if his evidence is over, the complainant will be confining to the evidence on the disputed facts only and therefore, the said Ramarao has to be first examined as a court witness." *


6. From what has been extracted above, it will be seen that the Magistrate did not have the evidence of the complainant or any of her witnesses, on the basis of which he could pass the impugned order in question. On the other hand, he has been simply carried away by the arguments of the respondent's counsel and in fact he seems to have treated the arguments as the evidence on the side of the complainant. This is hardly permissible. The learned counsel would say that the respondent had already made a sworn statement before the Magistrate. But that sworn statement was made in the absence of the petitioners. If the respondent is certain that the petitioners have committed an offence and that the file maintained in the office would prove their guilt, then she and/or her witnesses should enter the witness box and give evidence and afford an opportunity to the petitioners to cross-examine them, and thereafter move the court to summon the Building section clerk as a court witness. Without following such a course, it is not open to the complainant to assert through the arguments of her counsel that the case will be proved beyond doubt by summoning the Building section clerk as a court witness and examining the file. The complainant must lay the foundation for her case and then the court should apply its mind and decide the question whether it should exercise its descretion under S. 311 Cr.P.C. The learned Magistrate has then stated in his order as follows :-


"On a reading of S. 311 Cr.P.C. it is very clear that whenever the Court feels that the evidence of a person is essential for the just decision of the case, he shall be summoned and examined by the court : Further, the opening wordings of this section are that any court at any stage of any enquiry, trial or other proceeding, summon any person as a witness'. Therefore, the court can summon any witness at any stage of the proceedings irrespective of the fact that the prosecution has (not ... (sic)) opened the case by adducing evidence on its part." *


7. It is clearly seen that the learned Magistrate has not passed the order after applying his mind to the facts of the case, but has passed the order merely on the arguments of the learned counsel for the respondent. In a later portion of the order, he says that the Building Section clerk must be knowing the orders of communication sent by the accused 1 and 2 in the case, that his evidence will be an essential feature in the case and that there is a reasonable apprehension in the mind of the complainant that he may not support her against his officers, viz. accused 1 and 2 therefore, in order to give opportunity to the prosecution as well as the accused to cross-examine him he should be summoned as a court witness. This is hardly a proper or judicial exercise of the discretion vested in the Magistrate under the first part of S. 311 Cr.P.C. As regards the latter part, the Magistrate could not have come to the conclusion that the evidence of the court witness is essential because no evidence has been recorded in the case. It therefore follows that the order of the Magistrate cannot be sustained, as it is not in conformity with the requirements of S. 311 Cr.P.C. On the ground, the order deserves to be struck down. But that would not mean that at the appropriate stage of the case, the Magistrate will not be entitled to summon the Building section cl

erk as a court witness and examine him. If after recording the evidence of the complainant and/or her witnesses, the Magistrate is of opinion that for a proper decision of the case, the evidence of the Building Section clerk is essential he can then summon him as a court witness. 8. As regards the objection raised by the respondent's counsel to the maintainability of this petition, it has been pointed out in Rai Kapoor v. State (Delhi Admn.) that in between interlocutory orders at the one and final orders at the other end. There is a tertium quid where it is more than a purely intertocutory order and less than a final disposal and in such circumstances, the inherent power of the High Court under S. 482 Cr.P.C. can be exercised. In this case, the order complained of is not merely an Interlocutory order but it is more than an interlocutory order, because it completely disrupts the normal procedure of trial of cases and amounts to putting the cart before the horse. I am of opinion that this is a fit case where the bar contained in S. 397(2). Cr.P.C. will not apply. Consequently the objection is overruled. 9. In the result, for the reasons aforesaid this petition will stand allowed and the impugned order will stand quashed.