Judgment 01. The petitioner/complainant in FIR no. 6/2006 under section 420/468/471 RPC of P/S Crime Branch Srinagar has been filed this petition for quashing the order passed by JMIC Special Magistrate 13th Finance Commission Srinagar on 18.12.2015, by virtue of which application filed by state under section 540 Cr.p.c has been dismissed. 02. The case of the petitioner is that petitioner and private respondent were husband and wife and were married with each other in the year 1997 in accordance with shariat law and thereafter were living as husband and wife. That private respondent was insincere and disloyal to the petitioner and was not faithfully at any stage of life. The petitioner being well placed officer in the state services was getting heavy salary which was seized from the petitioner by the private respondent and she would remain always out of the pocket, the petitioner was not knowing what the private respondent is doing as the petitioner was transparent and sincere wife of the private respondent. That the private respondent made the petitioner to purchase a house in Bemina Housing Colony Srinagar and other house hold things including a Murati Car bearing registration No. JKOIE-6667 in the year 2003 and same was used by the private respondent for immoral acts as he was having the extramarital relation at the back of the petitioner. That one morning the petitioner came to know after fifteen years that the private respondent has contracted another marriage and is living life with that woman. That when the immoral acts of the private respondent were surfaced to the petitioner and other social relations and society at large, the private respondent started to dispose of the belongings of the petitioner .That above referred car was one of such things which was being alienated by the private respondent and the petitioner thereafter filed a complaint before Special Crime Branch Srinagar as private respondents has prepared some fake documents with regard to the alienation of the murati car. That the above said complaint was investigated and at preliminary verification the private respondent accordingly registered FIR bearing No. 06/2006 was lodged at P/S Crime Branch u/s 420, 468 & 471 RPC. That the above said complaint was investigated and at preliminary verification the private respondent accordingly registered FIR bearing No. 06/2006 was lodged at P/S Crime Branch u/s 420, 468 & 471 RPC. That the matter was investigated and it was found a fit case for trial both technically as well as traditionally and Challan was produced before the Court of law which was transferred to court of Sub Judge Special Mobile Magistrate Under 13th Financial Commission Srinagar. That the petitioner tried to participate the proceedings as the petitioner came to know that the private respondent has won over the prosecution machinery as whole, but the petitioner was prevented by the prosecution and said court at the instance of the prosecution on the simple ground that petitioner is stranger in the proceedings. That the prosecution remained unconcerned with the case during the trial and allowed the case go on with snails speed and did not took the pains to call the witnesses and the evidence at proper time and almost all the material witness were missed by the prosecution and the case went without recording the evidence of the material witnesses. That the trial court finally closed the witnesses of the prosecution on 13.10.2015. That the petitioner jibed the issue with the prosecutions and told them categorically that they have entered in illegal compromise with the accused person and have wilfully, deliberately, knowingly and purposely avoided the production of the evidence and the petitioner is going to take the issue with the Commissioner and the Home Minister. That the prosecution loss the senses for and while but they called upon the petitioners that they will ensure that all the prosecution witnesses are produced before the court to prove the case against the private respondent and there are abundant provisions in the law and the all the material witnesses would be called before the Court. That the petitioner against believed in the prosecution and trusted them to do whatever could be done by them to prove the guilt of the private respondent. The prosecution moved an application for recalling the witnesses’ No.2, 3, 5, 6, 9 & 10 under section 540 of the Cr PC and placed the same before the Court. The petition did not know that this is another favour of the prosecution being done to the private respondent. The prosecution moved an application for recalling the witnesses’ No.2, 3, 5, 6, 9 & 10 under section 540 of the Cr PC and placed the same before the Court. The petition did not know that this is another favour of the prosecution being done to the private respondent. That the court considered the matter and the application on the basis of the pleadings mentioned therein and passed and vide order dated 18.12.2015 rejecting the application of the prosecution being the application without any reasons and vague, besides calling it as review of the order dated 13.10.2015 when the prosecution witnesses were closed. 03. Petitioner being aggrieved of the order dated 18.12.2015, and the order of the closing of the witnesses of the prosecution and challenges the same on the following grounds and the grounds are taken in alternative without prejudice to each other. That the proceedings u/s 540 Cr PC are the independent proceedings and are to be considered to the independently on the basis of the pleadings and the reasons mentioned therein the application without being influenced by the previous recording the proceedings of the case. The order impugned has been passed by the trial court under the misconception of the law being contrarily to the law as such is not sustainable in the eyes of the law thus liable to be set-aside as illegal. That the prosecution has mentioned specifically mentioned the number of the witnesses in the application moved by the prosecution and there was no ambiguity in identifying the witnesses whom the prosecution is intending to call for the witnesses but despite that the trial court has returned baseless and meritless finding that the application is vague as it has not defined the witnesses which the prosecution is intending to recall for the tendering their evidence. Thus the petitioner seeks the shelter before this Court. That the FIR’s in which has been lodged at the instance of the petitioner has disclosed the commission of the heinous offences with regard to the property by a husband against his wife. 04. I have heard counsel for parties and law on the subject. The order impugned reads as under:— 18.12.2015: Sr. PO for the state submitted that the pending case is transferred to this court and there is some material witness which are yet to be recorded by prosecution. 04. I have heard counsel for parties and law on the subject. The order impugned reads as under:— 18.12.2015: Sr. PO for the state submitted that the pending case is transferred to this court and there is some material witness which are yet to be recorded by prosecution. Therefore, the said witnesses are required to be taken in support of prosecution story and therefore those witnesses are required to be brought u/s 540 Cr PC. Per contra learned counsel for the accused submitted that the present challan is pending in the court since 2006 and change of court does not mean that prosecution does not get any opportunity. Learned counsel for the accused vehemently argued that prosecution has got ample opportunities to bring prosecution witnesses since year 2006. Herein it is pertinent to mention that last and final opportunity was given to the prosecution on 29.05.2015 to produce witnesses. Thereafter prosecution witness no. 11 present as it is arrived in the order dated 16.06.2015, that prosecution witness 11 who was the enquiry officer (conducting preliminary enquiry herein) has categorically stated that whatever he has done in the preliminary enquiry was not disclosed to the investigating officer and hence after the recording of this evidence as there is no statement of said witness under 161 Cr PC on file and considering this, the imperative direction was passed wherein prosecution was directed to produce the remaining witnesses failing which the prosecution evidence was closed. Thereafter prosecution witness jaspal and Mohd. Maqbool present but due to absence to counsel of accused witness could not be recorded and hence cost of Rupees 100/- was paid to the witness who were directed to remain present on next date of hearing. However, on the next date of hearing prosecuting witness Jaspal present and his statement was recorded whereas prosecution witness Mohd. Maqbool was not present and accordingly bailable warrant were issued against him to the tune of Rs.1000/- with imperative direction to the prosecution to produce IO also on next date of hearing. However, on the next day of hearing neither bailable warrants returned nor any witness were produced by prosecution including IO. Hence last and final opportunity was given to the prosecution to produce witness. Thereafter on 13.10.2015 prosecution again fail to produce any witness and hence the prosecution evidence was closed and the file was fixed for statement of accused u/s 342 Cr PC. Hence last and final opportunity was given to the prosecution to produce witness. Thereafter on 13.10.2015 prosecution again fail to produce any witness and hence the prosecution evidence was closed and the file was fixed for statement of accused u/s 342 Cr PC. Charge against the accused was framed on 09.08.2012 and thereafter the prosecution got ample opportunities to produce the witnesses. However, at this stage the present application was filed by the prosecution. In the said backdrop it is now found that the application filed by the prosecution is vague as the same does not disclose that what witnesses are to be called by the prosecution. The prosecution evidence stands closed and the provision of section 540 Cr PC is simplicitior demanding the review of order of criminal code as prosecution is just mentioning that the witnesses which are left over should be called by the Court. The said application is prepared in a mechanical manner just in order to delay the proceedings. No name of any witness to be called and relevance of calling the same is not mentioned in the application u/s 540 Cr PC especially when the prosecution has cited 13 witnesses. Therefore, the said application is nothing but to seek review of order dated 13.10.2015 passed by this Court. This court has no power to review its order. Further in absence of specific name or reason, provision of section 540 Cr PC cannot be invoked mechanically. Present application is dismissed and shall become part of main file after due completion. Sd/- JMIC 05. From bare perusal of this order, it is evident that court below has dismissed the application of state for calling the witnesses on the grounds that case is very old and application has been made in casual manner and without mentioning the names of prosecution witnesses to be called. Section 540 of Cr.P.C deals with the summoning of material witnesses and recalling and re-examination of witnesses already examined. Section 540 of Cr.P.C deals with the summoning of material witnesses and recalling and re-examination of witnesses already examined. It is advantageous to quote section 540 of Cr.P.C as under:— “Any court may, at any stage of any inquiry, trial or other proceedings 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 its essential to the just decision of the case.” The bare perusal of section 540 of Cr.P.C. reveals that this section is in two parts. The use of the word ‘May’ in the first part and the use of the word ‘shall’ in the second part establishes the difference. Under the first part, it is permissive; the court may act in any of the three ways. (a) summon any person as a witness; (b) examine any person present in court although not summoned and (c) Recall or re-examine a witness already examined. The second part is obligatory and compels the court to act in these three ways or any one of them, if the just decision of the case demands it. Under this section there is no limitation on the power of the court arising from the stage to which the trial may have reached provided the court is of bonafide opinion that for the just decision of the case, the step must be taken. It is clear that the requirement of just decision of the case does not limit the action to something in the interest of the accused only. The action may equally benefit the prosecution. “Their lordships while dealing with the scope of section 540 of the Code of criminal procedure, 1989(corresponding to section 311 of the Code of Criminal Procedure, 1973) in case Mohan Lal Sham Ji Soni VS. Union of India and another 1991 Supp(1) SCC 271, observed in para 9 of the judgment as under:— The very usage of the words such as ‘any court’, ‘at any stage’, or ‘of any enquiry, trial or other proceedings’. ‘any person’ and ‘any such person’ clearly spells out that this section is expressed in the widest possible terms and do not limit the discretion of the court in any way. ‘any person’ and ‘any such person’ clearly spells out that this section is expressed in the widest possible terms and do not limit the discretion of the court in any way. However, the very width requires a corresponding caution that the discretionary power should be invoked as the exigencies of justice requires and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the section does not allow for any discretion but it binds and compels the court to take any of the aforementioned two steps if the fresh evidence to be obtained is essential to the just decision of the case.” While dealing with the second part of section 540 Cr.P.C, in more detail, their lordships in para 16 of the judgment observed as under:— “The second part of section 540 as pointed out albeit imposes upon the court an obligation of summoning or recalling and re-examining any witness and the only condition prescribed is that the evidence sought to be obtained must be essential to the just decision of the case. When any part to the proceedings points out the desirability of some evidence being taken, then the court has to exercise its power under this provision either discretionary or mandatory –depending on the facts and circumstances of each case, having in view that the most paramount principle underlying this provision is to discover or to obtain proper proof of the relevant facts in order to meet the requirements of justice. In this connection, I would like to quote with approval the following views of:— ....it is not only the right and the duty of the presiding judge to call the attention of the witness to it, whether it makes for or against the prosecution; his aim being neither to punish the innocent nor screen the guilty, but to administer the law correctly. Counsel seek only for their client’s success; but the judge must that justice triumphs. 06. In the case of Zahira Habibullah Sheikh (5) & Anr. Vs. State of Gujarat & Ors. Counsel seek only for their client’s success; but the judge must that justice triumphs. 06. In the case of Zahira Habibullah Sheikh (5) & Anr. Vs. State of Gujarat & Ors. reported in (2006) 3 SCC 374 , the Hon’ble Supreme Court has considered the object and scope of exercising the power under Section 311 of the Cr.P.C. The Court has said that the object underlying Section 311 Cr.P.C. is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The provision of Section 311 of the Cr.P.C. is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the trial court to issue summon to any witness at any stage of such proceedings, trial or enquiry. The fair trial for a criminal offence consists not only in technical observance of the frame, and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice. It will be relevant to quote paragraph nos. 27, 28 and 30 of the aforesaid judgment which reads as follows:— “27. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the Patna High Court Cr.Misc. No.3048 of 2016 dt. 07-03-2017 11 case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the Section merely because the evidence supports the case for the prosecution and not that of the accused. No.3048 of 2016 dt. 07-03-2017 11 case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the Section merely because the evidence supports the case for the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311the significant expression that occurs is “at any stage of inquiry or trial or other proceeding under this Code”. It is, however, to be borne in mind that whereas the section confers a very wide power on the Court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind. As indicated above, the Section is wholly discretionary. The second part of it imposes upon the Magistrate an obligation: it is, that the Court shall summon and examine all persons whose evidence appears to be essential to the just decision of the case. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court. 07. In U.T. of Dadra & Nagar Haveli and another v. Fatehsinh Mohansinh Chauhan [ (2006) 7 SCC 529 ], the Court was dealing with an order passed by the High court whereby it had allowed the revision and set aside the order passed by the learned trial judge who had exercised the power under Section 311 CrPC to summon certain witnesses. The Court referred to the earlier authorities and ruled that it is well settled that the exercise of power under Section 311 CrPC should be resorted to only with the object of finding out the truth or obtaining proper proof of such facts which lead to a just and correct decision of the case, as it is the primary duty of a criminal court. Calling a witness or re-examining a witness already examined for the purpose of finding out the truth in order to enable the court to arrive at a just decision of the case cannot be dubbed as “filling in a lacuna in the prosecution case” unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused resulting in miscarriage of justice. Be it stated, in the said case the court came to held that summoning of the witnesses was necessary for just and fair decision of the case and accordingly it allowed the appeal and set aside the order passed by the High court. 08. It reveals from the law laid down by the Supreme Court (Supra) that as discussed in Para sine quinoas for invoking the jurisdiction u/s 540 of Cr.P.C is that the,” requirement of justice” must demand the examination of a person and same depends upon the facts and circumstances of each case. Therefore, the exigency of the situation and fair play dictate the jurisdiction of the court as per the ratio following from above the said judgments. 09. In present case, challan has been produced on 6.5.2008; and accused was charge sheeted on 9.8.2012; the perusal of interim orders in file would reveal that accused always remained casual in attending the court proceedings. In 2014 due to flood , many files were washed away and so on 28.2.2015 , notices were issued to litigants to appear before courts; order dated 4.4.2015 would reveal that JMIC Small cause transferred the present challan to JMIC special Judge Srinagar; thereafter notice was issued to accused; accused appeared on 29.5.2015 and on the same date last opportunity was provided to prosecution to produce the witnesses; it further appears that on next date on 16.6.2015 one witness was present but his statement under section 161 Cr.p.c was not file so could not be examined. On 27.7.2015 two witnesses were present but due to absence of counsel for accused their statements could be recorded. On next date 25.8.2015, no witness was present so billable warrants were issued against witnesses who were present on last date and matter was posted for 17.9.2015 and one last & final opportunity was provided to prosecution to produce prosecution witnesses failing which evidence was said to deemed closed. On next date 25.8.2015, no witness was present so billable warrants were issued against witnesses who were present on last date and matter was posted for 17.9.2015 and one last & final opportunity was provided to prosecution to produce prosecution witnesses failing which evidence was said to deemed closed. On 13.10.2015, the right to produce witness was closed. Thereafter prosecution filed an application for calling all left over witnesses without specifying the names and said application was dismissed by virtue of impugned order. It is worthwhile to mention here that prosecution has cited as many as 13 witnesses but examined only 4 witnesses. From the perusal of interims order in file, it is evident that accused always remained casual in appearing before court; even prosecution witnesses were present on 2.9.2013, but could not be examined due to absence of accused; even proceeding under section 514 Cr.P.C. were initiated against accused. 10. The law is clear, that justice seems to be done to both victim and accused. Procedural laws are handmaid tools meant for administration of justice. Court should not sit like spectator and allow the prosecution to produce witness at their whims and choice; court should take active role in calling the witness, because court are meant for providing substantial justice to both accused and victims; and this can be done only by calling the witnesses through court process if prosecution shows inability to produce witnesses; it is also duty of prosecuting agency to assist the court in calling the witnesses; court should see that accused should not be benefited by his tactful means ,by not appearing in court when witness comes. If prosecution does not prosecute his case diligently and fairly then certainly court has to come forward and has to play active role in calling witnesses. Section 540 of Cr.p.c is a tool in the hand of court to do substantial justice in criminal case as court has ample power to call any witness/s not examined or can recall any witness/s though examined and can re-examine him. Even if right to produce witnesses is closed, even then court has power to call witnesses in terms of Section 540 Cr. P.C. in order to do substantial justice to both victim as well as to accused. 11. Even if right to produce witnesses is closed, even then court has power to call witnesses in terms of Section 540 Cr. P.C. in order to do substantial justice to both victim as well as to accused. 11. In view of above this petition is allowed and order of court below is set aside; however, keeping the age of challan, prosecution is directed to produce all left over witnesses within four dates onwards provided accused shall appear before court on each and every dates. Record of court below along with order be sent back to court below for compliance.