Tarsem Lal @APPELLANT@Hash State Of Jammu & Kashmir

In the instant petition filed under Section 561-A CrPC, the petitioner inter alia seeks quashing the order dated 13.03.2018, passed by the learned CJM, Jammu whereby right of the petitioner to cross-examine the prosecution witnesses was closed and also for quashing the order dated 20.09.2018 whereby the application of the petitioner filed u/s 540 CrPC for recalling the prosecution witnesses for their cross examination was dismissed.

I have heard the contentions of learned counsel for the petitioner. I have also gone through the orders of the court below. Perusal of the order of the court below dated 13.03.2018, it is evident that, right to cross examine the witnesses was closed as the court waited for long time but the counsel did not appear and even accused refused to give Rs.500/- as charges for to and fro for the witnesses. The order dated 20.09.2018, by virtue of which application 540 Cr.P.C has been dismissed, would reveal that due to long pendency of the case, the application has been dismissed.

I have given my thoughtful consideration to the whole aspect of the matter.

Section 540 reads as under :

"540. Power to summon 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 if his evidence appears to it essential to the just decision of the case".

Bare perusal of this section, it is evident that it consists of two parts. First part gives discretionary power to court in summoning 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. Second part of section is mandatory and it cast a duty upon the court to call and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case.

Both the powers have to be exercised by with care and judiciously, so that criminal justice seems to have been done to both prosecution and accused.

In present case, accused persons are facing trial in offense under section 420 RPC. Discovery of truth is an essential purpose of any trial or enquiry. Cross examination of witness is essential for shaking creditability of witness. Our criminal administration of justice mandates that no one should be condemned unheard. Right of cross examination of witness who has spoken against the accused is basic right of accused. In case witness is not cross examined, it may result in a serious miscarriage of justice. It is the duty of the court to arrive at the truth by lawful means.

The witnesses mentioned above have not been cross examined at all; when accused have engaged counsel, then they are not obliged to cross examine the witnesses himself. The denial on the part of advocate to cross examines the witnesses, the accused should not suffer. The Hon'ble Supreme Court in the case titled "Sanjeeva Rao v. State of A.P, reported in AIR 2012 SC 2242", it is held as under:

"Criminal P.C (2 of 1974), Ss, 311, 242-Recall of witness for examination-Bribery case-Recall of complainant and shadow witness for cross-examination sought years after examination-in-chief-Plea that their cross-examination was deferred as defense wanted to cross-examine them after trap laying officer was examined-Liable to be accepted as nobody would refuse to cross-examine witnesses who had supported prosecution case-Refusal to recall witnesses would amount to condemning accused without giving him opportunity to challenge correctness of version and credibility of witnesses-Permission to recall witnesses granted despite prejudice that may be caused to prosecution because of belated recall."

In view of the above, the instant petition is disposed of by directing the petitioner to deposit Rs.3,000/- for to and fro for prosecution witnesses, mentioned in the petition, within seven days from the date of receipt of order by the court below. In case, the said amount is deposited by the petitioner within seven days, the court below shall call the prosecution witnesses mentioned in the petition for their cross examination. It is also directed that the learned counsel for the petitioner shall cross examine these witnesses on same date only, to be fixed by the  court below. Only in the event of unavoidable circumstances, the court below will grant further time.

Disposed of as above.