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2011 DIGILAW 230 (JK)

Maqsood Ahmad Mir v. State of J & K

2011-05-02

MUZAFFAR HUSSAIN ATTAR

body2011
1. Case FIR No. 126/1997 Police Station, Kothibag/was registered against the petitioner Under Sections 420,419,457,468,471 and 472 RPC. After the conclusion of the investigation report Under Section 173 RPC was filed before the Court of competent jurisdiction. The charge was framed and petitioner put on trial by the learned trial Court vide its order dated 24.06.1999. The prosecution was afforded opportunity to lead evidence in support of its case. 11 witnesses were listed, out of which 4 witnesses were produced before the Court. It was reported that two witnesses are dead and other five witnesses were not produced despite opportuni­ties having been granted to the prosecution. The learned Trial Court ultimately ordered for closing of prosecution evidence on 31.07.2002. Thereafter, statement of the petitioner was recorded as provided Under Section 342 Cr.P.C. Learned APP filed an application Under Section 540 Cr. P. C. praying therein that remaining witnesses be summoned by the Court in exercise of powers conferred upon it under aforesaid provision of law. The learned trial Court after hearing the parties dis­missed the application on the ground that same will tantamount to reviewing the earlier order. 2. Another application was filed by the prosecution requesting the learned Trial Court to exercise powers conferred upon it Under Section 540 Cr.P. C. and summon one Altaf Ahmad hand writing expert. This application was allowed by the the Trial Court vide order dated 10th of August, 2009, same is impugned in this petition. 3. Heard learned counsel for the petitioner. Considered the matter. 4. Learned counsel for the petitioner submitted that in view of the order passed by the Trial Court on 27th December, 2002, the impugned order could have not been passed. The learned counsel submitted that vide order dated 31st July 2002, the prosecution evidence was ordered to be closed. Learned counsel submitted that the learned Trial Judge in terms of impugned order has reviewed its earlier order which is not permissible in law. Learned counsel submitted that the Trial Court cannot review its order except for correcting the Clerical mistakes. 5. Learned counsel submitted that the learned Trial Judge in terms of impugned order has reviewed its earlier order which is not permissible in law. Learned counsel submitted that the Trial Court cannot review its order except for correcting the Clerical mistakes. 5. Section 540 RPC confers power on a Court to 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 has to 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. Altaf Ahmad handwriting expert is not cited as a prosecution witness. The learned Trial Court vide order dated 24th December, 2002, rejected the application of prosecution to summon the remaining five listed witnesses. No application to summon Altaf Ahmad handwriting expert was filed at that point of time. The learned Trial Judge, while considering the application Under Section 540 Cr.P.C. for summoning Altaf Ahmad handwriting expert, examined the material on record and found that the evidence of said persons is necessary to arrive at just conclusion. 7. The learned Trial Judge in terms of impugned order in view of the afore­mentioned factual background of this case has not reviewed any order passed earlier. Even otherwise the power conferred on the Trial Court in terms of Section 540 Cr. P. C. is a unique power which is to be exercised in the appropriate case to serve ends of justice. The purpose of constituting Criminal Courts is to ensure that an innocent person does not suffer punishment and guilty does not go unpunished. In the scheme of Criminal Procedure Code and other related laws there are more chances for the accused person to escape the punishment. The rule of law is to be maintained. The duty, in particular fact situation of a case, to summon witness and examine him when it is found necessary, is mandatory in nature. 8. In this case, the handwriting expert Altaf Ahmad was not cited as prosecu­tion witness, the learned trial Judge deemed it appropriate to summon him. The power to summon the said witness is conferred on the Trial Court in terms of Section 450 Cr. P. C. The impugned order for the above reasons does not suffer from any illegality. 9. 8. In this case, the handwriting expert Altaf Ahmad was not cited as prosecu­tion witness, the learned trial Judge deemed it appropriate to summon him. The power to summon the said witness is conferred on the Trial Court in terms of Section 450 Cr. P. C. The impugned order for the above reasons does not suffer from any illegality. 9. For the above stated reasons this petition is dismissed. The Learned Trial Judge to issue notice to Altaf Ahmad handwriting expert for his examination on the date to be fixed by it. The learned AAP is also duty bound to take steps for procuring attendance of said witness before the Court. The Trial Court to take steps for summoning the said witness. Only two opportunities be granted to the prosecution to procure the attendance of the said witness. In the event the attendance of the witness is not procured by the prosecution within two dates of hearings, the prosecution shall be deemed to have lost the right of securing his presence. The trial Court will also make such two efforts to secure the presence of the said witness namely Altaf Ahmad, handwriting expert. 10. Registry to send record back forthwith. The accused to present before the Trial Court on 18th May, 2011.