Ghulam Mohi-ud-din Khan vs Gulla Chak and Others

Y.P. Nargotra, J.—This is a revision of the complainant against order of acquittal dated 16.1.2003 recorded by Judicial Magistrate

Tangmarg. In a case for commission of the offences under Sections 326 and 342 RPC, instituted on police report, the accused/respondents 1 to 4

were tried and acquitted by the trial court on the failure of the prosecution to prove the case to the hilt by leading cogent evidence. During the trial

the prosecution had failed to examine some of the witnesses like Doctor who had examined the injured. The contention of the Ld. counsel for the

petitioner is that the Ld. trial court ought to have exercised power u/s 540 Cr.P.C. and examined the left out witnesses so as to do complete justice

to the case. It is not the case of the petitioner that evidence led in the case has not been properly appreciated by the Ld. trial court.

The sole question raised in the revision petition is thus whether the trial court should have exercised its power u/s 540 Cr. P.C. and summoned

and examined the witnesses not produced by the prosecution during trial of the case.

Against the acquittal of the accused the State has not filed any appeal. It is only the complainant who by his revision, is challenging the acquittal

on the aforesaid ground. It is also an admitted fact that none of the parties ever made any request before the trial court for invoking the powers u/s

540 Cr.P.C. The Ld. trial court as such has not considered the question whether the powers u/s 540 Cr.P.C. required to be invoked. In this

background it has to be seen whether the trial court ought to have exercised the said power. Section 540 reads:

Power to summon material witnesses, 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.

The section is manifestly in two parts. First part gives wide discretion to the court to summon any person as a witness, to examine any person

present in the court or to recall and re-examine any person whose evidence has already been recorded. The second part of the section is

mandatory and the court is bound to examine any such person whose evidence appears to it essential for just decision of the case but none the less

the power vested under this section is not intended to be exercised to fill up the lacunas left in the prosecution case. Where prosecution is given full

opportunity of leading evidence fails to produce some evidence then the left over evidence can be introduced in the case by the court if it is

satisfied that such evidence is absolutely necessary for the just decision of the case.

What evidence will be essential for the just decision of the case, has to be decided by the trial court or for that matter by the appellate court but

while exercising revisional jurisdiction this court would not go into the question not raised and decided by the court below.

Since neither the state nor the petitioner raised the said question before the Ld. trial court, Ld. trial court has not addressed to it and now in

revision the case cannot be allowed to be re-opened. Therefore, there is no merit in revision as no legal infirmity in judgment is discernible. Ld. trial

court has weighed and shifted the prosecution evidence according to the settled legal principles. Dismissed.