Hem Raj vs State

Nirmal Singh, J.—Petitioner is facing trial u/s 302 RPC before learned Sessions Judge, Udhampur, on the allegations that he has killed his

own son.

Godawari Devi, Mohan Singh and Neelam Devi, wife, son and daughter-in-law of the accused were witnesses of occurrence. All of them were

examined by the prosecution and they supported the case of the prosecution. Thereafter they moved an application before the trial court for

recalling them to record their fresh statements by pleading that they want to make a clean breast of certain facts which they could not do in their

earlier statements. They also pleaded that accused has been falsely implicated as his deceased son was killed by the militants. The learned Sessions

Judge rejected the application for recalling these witnesses.

Godawari Devi, Mohan Singh and Neelam Devi, who were the applicants, did not challenge the order rather the accused has filed this revision

petition being aggrieved of the order passed by learned Sessions Judge.

I have heard the learned Counsel for the petitioner and perused the record.

Revision petition preferred by the accused is not maintainable as calling or refusing to recall a witness is an interlocutory order, as has been laid

down by the Division Bench of this Court in S.K. Mahajan v. Municipality, Jammu and Ors. reported as 1982 KLJ 1 wherein it has been held that

refusing to summon witnesses u/s 540 Cr.P.C is an interlocutory order and attracts a Bar under Sub-section 4-a of Section 435 of Cr.P.C, and

observed as under:

No party has a right to have a witness examined u/s 540. It can only drawn the attention of the court by making a prayer to that effect.

Whether or not a witness is to be examined under this section, the discretion entirely lies with the court, though it may be obligatory on its part to

summon the witness in case his evidence appears to it to be essential for the just decision of the case. Nevertheless, it is the requirement of the

court and not that of the party to see whether or not a witness is to be examined. Viewed thus, an order granting or refusing the prayer of the party

to have a witness examined u/s 540 cannot be said to have determined any right of the parties and consequently fails to acquire the flavour of a

final order. It is an interlocutory order, pure and simple. I am not prepared to accept the proposition, which to me too narrowly stated, that unless

the order brings an end to the proceeding in which it is made, it cannot be said to be a final order. This, in fact, was the connotation placed upon

the expression ""final order"" in Kuppaswami's case (supra). But it was not accepted by the Supreme Court in Madhu Limay's and V.C. Shukla's

cases (supra). The apparent conflict was, however, sought to be avoided by creating a third category of orders to be known as ""intermediate

orders"" as would appear from the following observations made by His Lordships S.M.F. Ali J, expressing the majority view in V.C. Shukla's case

(supra):

To sum up, the essential attribute of an interlocutory order is that it merely decided some point or matter essential to the issues sought but not a

final decision or judgment on the matter in issue. An intermediate order is one which is made between the commencement of an action and the

entry of the Judgment, Untwalia J. In the case of Madhu Limaye v. State of Maharashtra clearly to convey that an order framing charge is not an

interlocutory order but is an intermediate order as defined in the passage, extracted above, in Corpus Juris Secundum, Vol. 60. We find ourselves

in complete agreement with the observations made in Corpus Juris Securdum. It is obvious that an order of framing the charge being an

intermediate order falls squarely within the ordinary and natural meaning of the term ""interlocutory order"" as used in Section 11(1) of the Act.

Section 540 Cr.P.C reads as under:

Power to summon the 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 of his evidence appears

to it essential to the just decision of the case.

Perusal of above section shows that paramount consideration for summoning, recalling or re-examining of any person already examined, is that

his evidence must appear essential to the court for just decision of the case. The Court has not to allow application of either of the defence or of

the prosecution on mere asking or to fill up the lacuna which has been left by the prosecution or by the defence. Once the witness is examined as a

prosecution witness he cannot be allowed to perjure himself by resiling from the testimony given in the Court on oath as has been laid down by the

Apex Court in Yakub Ismailbhai Patel Vs. State of Gujarat, .

In the case in hand, the petitioner himself moved an application for re-calling the witnesses, namely, Romal Singh, Jagdish, Lal Chand, Shakuntla

Devi, Sant Singh and Gyatri Devi. That application was rejected by the trial court vide order dated 13.2.2004 except two witnesses, namely, Lal

Chand and Romal Singh were re-called on the ground that they were not properly cross examined. The petitioner has not challenged the order

dated 13.2.2004 nor he moved any application for re-calling the eye witnesses of the occurrence, namely, Godawari Devi, Mohan Singh and

Neelam Devi. The court has also not re-called those witnesses suo moto that their evidence is essential for the just decision of the case. From the

facts it shows that petitioner has been able to persuade his wife, son and daughter-in-law to move the application for re-calling them so that they

can be able to resile from their earlier versions, but the witnesses cannot be allowed to perjure.

The statements of applicants, Godawari Devi, Mohan Singh and Neelam Devi were recorded. They have not complained to any one that they

have made the statement against the petitioner under the threat of police or militants. The applicants have not brought any material to satisfy the

court that their re-examination is necessary for the just decision of the case, therefore, the order passed by the learned Sessions Judge does not

suffer from any illegality.

For the reasons mentioned above there is no merit in this revision petition which is, accordingly, dismissed.