Jammu And Kashmir And Ladakh High Court

Through :- Mr. Raman Sharma, AAG. Coram: HON’BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE (Though Video Conferencing from Srinagar) ORDER

The petitioner in the instant petition filed under Section 482 Cr.P.C has thrown challenge to order dated 24.09.2021 (for brevity the „impugned order’) passed by the Court of 2nd Additional Session Judge, Jammu (for brevity the „trial court‟) upon an application filed by the prosecution under Section 540 Cr.P.C. for allowing to produce witness, namely, Mohd. Sarver Mir, Advocate was allowed.

It is being contended in the petition that the after closure of evidence led by the prosecution in terms of order dated 26.02.2020, the trial court entertained the application of the prosecution filed under Section 540 Cr.P.C., whereunder the prosecution sought production of witness, namely, Mohd. Sarver Mir.

It is being next contended in the petition that the trial court ought not to have entertained the application or else passed the impugned order after the evidence led by the prosecution was closed by the trial court and the statement of the accused was recorded under Section 342 Cr.P.C.

It is being further contended that the trial court passed the impugned order while allowing the prosecution to fill up the lacunae left in the case and allowing 2 CRM(M) No. 172/2022 the same, has put the petitioner/accused to a disadvantageous position more so when the defence of the accused had also been closed. Heard learned counsel for the petitioner and perused the record.

Perusal of the record tends to show that after closure of the prosecution evidence, the trial court entertained application filed by the prosecution under Section 540 Cr.P.C. for producing one prosecution witness, namely, Mohd. Sarver Mir, an Advocate by profession, being connected with the alleged forged sale deed. The application has been entertained by the trial Court on the premise that the deposition/statement of the witness sought to be produced is essential for just decision of the case and that the said witness could not be produced or examined during the trial of the case for the reasons stated in the application of the prosecution.

Perusal of the record further reveals that the trial court has held the said witness to be as a material witness in the case and as such, allowed and the said witness to appear in the witness box.

Whether having regard to the facts and circumstances of the case, the trial court ought to have been entertained the application and passed the impugned order is the moot point that begs consideration by this Court in the instant petition.

Admittedly, application has been filed by the prosecution under Section 540 Cr.P.C., which provides for power to summon the material witnesses or examine persons present at Court at any stage of any inquiry, trial or other proceedings under the Code. Perusal of Section 540 Cr.P.C. suggests that the same has two parts. The first part gives a discretionary power to the Court, whereas the later part is mandatory in nature. The very usage of words in the Section “any court, at any stage, of any inquiry, trial or other proceedings” would suggest that the Section is expressed in widest possible terms based on 3 CRM(M) No. 172/2022 cordinal rule of law of evidence that the best available evidence that should be brought before the Court to prove a fact or points in issue. It is true that the lacunae in the prosecution case cannot not be filled up by invoking the provisions of Section 540 Cr.P.C. but where there had been unintentional negligence on the part of the prosecution in not producing a witness, the summoning of the witness by the court would be permissible. By allowing the prosecution to produce the witness in question, the petitioner nonetheless would not be prejudiced, in that the petitioner/accused would be having a chance to cross-examine the said witness.

Further perusal of the record would reveal that there is no inordinate delay in seeking production of the witness in question on the part of the prosecution.

The order impugned in view of the aforesaid analysis does not call for any interference. Resultantly, the petition fails and is, accordingly, dismissed.

At this stage, learned counsel for the petitioner insisted that the trial court is prolonging the consideration and disposal of the case and despite having allowed the prosecution to produce the witness in question being PW-19, the said witness has not been produced by the prosecution. The trial Court is directed to seek production of the witness in question on the next date of hearing for examination by the prosecution positively and in the event, the prosecution fails to produce the said witness, the trial court may proceed in accordance with law without delaying the disposal of the case. (Javed Iqbal Wani) Judge Jammu: 23.03.2022 Angita Whether the order is speaking : Yes/No Whether the order is reportable: Yes/No