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2005 DIGILAW 205 (JK)

Ab. Rehman Wani v. State Through P/S Kargil

2005-08-02

MANSOOR AHMAD MIR

body2005
1. This revision petition is outcome of a case which is two decades old. 2. The petitioner, by the medium of this revision petition, has challenged the order dated 1st October, 2003 passed by 4th Additional Sessions Judge, Srinagar in case titled State Vs. Abdul Rahman Wani FIR No.57/88. 3. It appears that accused, petitioner herein, has moved an application on 20th March, 2003 for recalling PW™s 1,2 and 3 for further cross examination on the grounds that the defence counsel has not put material questions to the witnesses during cross examination and for re-examining PW5 because his statement is essential for the just decision of the case. 4. The prosecution has contested the application. The learned 4th Additional Sessions Judge, Srinagar dismissed the application by passing the impugned order which is well reasoned and speaking one. 5. It is profitable to reproduce Section 540 of Cr.P.C. herein, which reads as under;- 540. Power to summon material witness, or examine person present.-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 re-examine any such person if his evidence appears to it essential to the just decision of the case.� 6. While going through this provision of law, the court has discretion to summon any person as witness or recall or re-examine any person already examined at any stage of the inquiry or trial or other proceedings provided his evidence appears to it to be essential to the just decision of the case. 7. This remedy cannot be pressed into service by the accused for recalling the witness for further cross examination. 8. This court has held in a case titled Yunis Khan & Ors. Vs. State reported in 1990 SLJ 203 as under;- 5. The above provision arms the court both with discretionary and mandatory powers to examine the witness already examined or recall witness for examination/re-examination of any such person if his evidence appears to it essential to the just decision of the case. Vs. State reported in 1990 SLJ 203 as under;- 5. The above provision arms the court both with discretionary and mandatory powers to examine the witness already examined or recall witness for examination/re-examination of any such person if his evidence appears to it essential to the just decision of the case. The first portion gives the court disertion to examine any witness at at any stage of the case before passing a judgment, to summon any witness, examine any person, who may be present however, not cited as a witness and recall and re-examine any person already examined. The court has wide scope to express its order either way. When in the 2nd portion the court has option to examine, recall and re-examine any such witness, if his evidence, appears to the court essential to the just decision of the case. It is in the latter portion of the provision the court-below has exercised its jurisdiction to call for cross-examination the witness who were examined at the enquiry u/s 207-A Cr.P.C. and who were not produced by the prosecution at the trial. S. 540 Cr.P.C. clearly and in unambiguous terms gives power to the court to summon any witness for examination or recall any witness and re-examine him which means that both prosecution and defence have option to cross-examine such witnesses as called u/s 540 Cr.P.C. Calling a witness for cross-examination only u/s 540 Cr.P.C. by the accused is unknown patently to the said provision. It is here, the learned magistrate has fallen into legal error for calling a witness for cross-examination only what is not provided by the provision, under which same have been ordered to be re-summoned¦¦¦.� 9. It is averred that the defence counsel has not put material questions during cross examination. The remedy in terms of Section 540 Cr.P.C. can be invoked only when the court records finding that summoning of a witness or recalling a witness at any stage of the case is for just decision of the case. This power cannot be exercised for filling up the lacunae in evidence. 10. The accused has cross examined the witness and after concluding the statement of the witnesses, it cannot be said that the material questions have not been put to the witness. This remedy cannot be used as a weapon in order to fill up the gaps and cause delay in the trial. 11. 10. The accused has cross examined the witness and after concluding the statement of the witnesses, it cannot be said that the material questions have not been put to the witness. This remedy cannot be used as a weapon in order to fill up the gaps and cause delay in the trial. 11. It is worthwhile to mention herein, of which one must take note of, that the PW™s 1,2,and 3 have been examined on 13th June, 1990 and after lapse of thirteen years i.e. on 20th March, 2003, the accused, petitioner herein, has arisen from deep slumber and has moved the application which stand rejected rightly by 4th Additional Sessions Judge, Srinagar in terms of the impugned order. 12. It is also moot question, whether the rejection of application under Section 540 Cr.P.C. or granting the same is interlocutory order or otherwise? I deem it proper to leave this question open. 13. Keeping in view the above discussion and the reasons given in the impugned order, it is hereby held that the impugned order has been passed rightly and does not suffer from any illegality or non-application of mind. 14. Accordingly, the revision petition is dismissed along with all connected Cr.MP(s). Interim direction, if any, shall stand vacated. 15. The trial court is directed to decide the case within a period of two months. 16. Registry is directed to send down the record along with a copy of this order for information and compliance.