Ranjit Singh vs State through VOJ

Mr. Mohammad Yaqoob Mir, J. (Oral) - Quashment of the order dated 29.03.2016 passed by the Court of Special Judge Anti Corruption

Jammu is sought.

Accused is facing trial before the Court of Special Judge Anti Corruption Jammu in connection with FIR No.20/2011 P/s VOJ for commission

of offence under Section 5(2) PC Act read with Section 161 RPC. The trial is in progress. Prosecution is producing and examining its witnesses.

The accused has filed an application under Section 540 Cr.PC seeking recall and examination of prosecution witnesses No.8, 10, 12, 15 and

By a well reasoned order, application has been rejected.

Learned trial Court has observed that out of the five witnesses, two have been examined and cross-examined by the defence in detail whereas

other witnesses have not been examined by the prosecution. In para-3, it has also been mentioned that the learned defence counsel has candidly

agreed to the extent that his argument may not hold good at this juncture particularly in respect of PWs 8, 15 and 16 nor could he justify the

reexamination of PWs 10 and 12 who have been already examined.

Learned counsel for the petitioner highlighted that the essence of the trial is to give a fair opportunity to the accused so that fair trial may not

become casuality. There can be no quarrel on said proposition. Fair trial is the hall mark of criminal justice system.

Three witnesses i.e. PWs 8, 15 and 16 have not been examined by the prosecution. Regarding them trial Court has rightly observed that it is for

the prosecution to examine the witnesses whatever they may have and in case they have left out any witness, the accused when enters upon

defence may have right to file application and pray for calling them as its defence witnesses and then to examine. That is how, learned counsel for

the defence has candidly stated before trial court that his argument may not hold good.

Now the question is as to whether the PWs 10 and 12 could be allowed to be recalled and re-examined. Answer has to be 'no' as has been

rightly opined by learned trial court that at such a stage recall of such witnesses is not permissible that too when the witnesses have been properly

examined and cross-examined at length.

The true scope of Section 540 Cr.PC is that the court is clothed with a discretion to be exercised so as to call or recall any witness already

examined or re-examined or even if not examined when it appears to the court that his evidence shall be essential for the just decision of the case.

The provision cannot be abused by either party so as to fill up the lacunas. It is only when the court is satisfied at the appropriate stage that there is

requirement of calling any witness who has not been examined or to recall any witness, examined as well as cross-examined, subject to a limitation

i.e. either party then shall have to be given reasonable opportunity, to re-examine and cross-examine the witnesses.

Learned trial Court has cautiously used the word that at this stage it would be untenable to show indulgence on the motion of the defence

counsel.

Suffice it to say that the power is still open to be exercised by the trial Court in the background of the object of Section 540 Cr.PC. Though

learned counsel for the petitioner tried to persuade that this power could be exercised by the trial Court at this juncture by placing reliance on two

judgments, one rendered by Punjab and Haryana High Court and another by Gujarat High Court.

While applying the law as has been laid down in these two judgments, it is clear that the power is exercisable but at an appropriate stage i.e.

only when the court finds that there is a requirement of examining any witness or to recall any witness which may be necessary for the effective

decision of the case. This power is reserved with the trial Court so can be exercised provided need arises. There is no scope for interfering with

the order impugned. To entertain this petition will simply protract the trial as a result whereof the very object of fair and expeditious trial will get

defeated.

Petition accordingly dismissed.

Copy of the order be sent to the trial Court for information.