Ravi Kapahi & Ors. vs State

Petitioners seek to quash order dated 30082001 passed by the learned Additional Sessions Judge, Jammu, whereby he has allowed the

application of the prosecution for examining of three witnesses, namely, Ram Krishan, Kasturi LaL and Rakesh Kumar, father, brother and cousin

of the deceased.

The petitioners are facing trial for the alleged commission of offences under section 302/148/149/323 RPC and 4/27 of the Arms Act. The

prosecution has cited 31 witnesses in the challan including six alleged eyewitnesses. The prosecution took three years to produce the evidence. On

3.8.2001 the prosecution evidence was closed on the statement of the APP and file directed to come up on 18.8.2001 for recording the

statements of the accused under section 342 Cr.P.C. On this date, the prosecution filed an application invoking section 540 Cr.P.C for summoning

three more witnesses named above, as they have also seen the occurrence. The ground taken before the trial court is that these witnesses were

available and willing to get their statements recorded under section 161 Cr.P.C. but the investigating officer has not recorded their statements and

cited them in the challan as eye witnesses. Learned trial court has allowed the application.

Petitioners seek to quash impugned order on the ground that the application has been moved with oblique motive to delay the trial and no

plausible reasons have been assigned for moving the application before the trial court, after closure of the evidence. The fact that these witnesses

have also seen the occurrence was known to the prosecution, they should have recorded their statements and if the statements have not been

recorded, the prosecution should have approached the trial court at the earlier stage of the trial.

Heard learned counsel for the parties and perused the record.

Perusal of the impugned order reveals that the trial court has recorded in the course of the impugned order that the application has been filed

immediately after the closure of the evidence. The reasons have not been assigned in the application but the trial court has stated the reasons. It is

not disputed that the court under section 540 Cr.P.C. can summon any person as a witness but this power is required to be exercised on

justiciable reasons. In the application it is divulged that the statement of witnesses could not be recorded though they were willing to get their

statements recorded U/S 161 Cr.P.C. It is settled proposition of law that the statements of all the witnesses are not required to be recorded by the

prosecution. The statements of as much of the witnesses are required to be recorded which are sufficient according to the prosecution to prove the

commission of the offence. The number and sufficiency of the witnesses is corelated to that extent. The prosecution in order to establish the guilt

has cited as many as 31 witnesses in the challan. Ved Pal, another brother of the deceased has been cited as eyewitness and his statement has also

been recorded by the trial court. The persecution has rot made out that their statements were still necessary and as to why the application could

not be moved at the earlier stage. It is not the case of the prosecution that the witnesses cited as eyewitnesses were not sufficient to prove the case.

The trial court has to take into consideration these factors also while exercising the power vested in it. The power is not to be exercised only

because it is vested, it is to be exercised judiciously. The reasons given by the trial court that petitioners moved the court immediately after closure

of the evidence and those witnesses happen to be alleged eyewitnesses, is no good ground. It will certainly cause prejudice to the rights of the

accused who have been chargesheeted taking into consideration the evidence collected by the prosecution forming part of the challan presented

under section 173 Cr.P.C. Law makes it obligatory upon the court to make available to the accused the statements of all these witnesses including

other evidence relied upon by the prosecution before hearing the accused at the stage of charge/discharge, which will not be available here. The

trial court has not appreciated this aspect of law eminating this circumstance. Allowing such application at this stage, will prejudice the rights of the

accused and the trial court has also not recorded findings to that extent, as observed above.

I feel that a belated attempt has been made by presenting the application to prolong the trial and the trial court mis directed itself in allowing the

application for producing three more witnesses.

For the aforesaid reasons, the impugned order is quashed. The statements, if recorded, shall be treated as nonest. The proceedings, if any,

conducted thereafter are also quashed.