IMPORTANT POINTS
(1) Recall of witness – Exercise of this power cannot be dubbed as filling in a lacuna in a prosecution case.
(2) Witnesses examined by one party cannot be allowed to be examined on behalf of opposite party at its instance.

JUDGMENT

Md. Akram Chowdhary, J.—In a complaint under Section 138 of Negotiable Instruments Act 1881, filed before the court of learned Judicial Magistrate (Sub Judge) Chadoora, the complainants-petitioners herein are stated to have examined Nazir Ahmad Joo, Manager J&K Bank Branch Chadoora, Mohammad Yousuf Wani and Ghulam Nabi Wani as complainants’ witnesses, which were stated to have been duly cross examined by learned counsel for the accused.

2. On 10.04.2014 the respondent-accused filed the application mentioning therein the list of defence witnesses seeking issuance of process for presence of witnesses namely Nazir Ahmad Joo, Advocate A.R.Hanjura, Manager J&K Bank Branch Chadoora and Patwari Halqa Wathora at S.No. 1 to 4 respectively, in the list of witnesses and it was prayed that these witnesses be called through the process of court. The application moved by the accused was allowed on the same day vide order dated 10.04.2014, perusal whereof reveals that it was allowed in a routine manner.

3. Aggrieved of the order dated 10.04.2014, whereby application moved by the accused was allowed in a routine manner, it was challenged by way of filing of petition under Section 561-A Cr.PC and this Court vide order dated 21.04.2017 allowed this petition No. 68/2015 and the impugned order dated 10.04.2014 was quashed, directing the petitioners to file objections within a period of 15 days from the date of the order with advance copy thereof to learned counsel for the accused and the learned trial Magistrate was directed to make an endeavour to hear and decide the application within next 15 days.

4. Pursuant to the directions of this Court, the complainants/petitioners filed objections to the application field by the accused/respondent asserting therein that Nazir Ahmad Joo and Manager J&K Bank Branch Chadoora have been examined by the complainants as their witnesses and the accused had cross examined them before being discharged, whereas Advocate A.R.Hanjura, who was the counsel of the complainants, was not required to be examined by the opposite side in view of the fiduciary relationship of counsel and the client and also that the Patwari Halqa Wathora was not required to be examined as the accused was not supposed to prove the details of his property within the village Wathora, as the same was not required for disposal of a petition under Section 138 NIA. The complainants finally prayed that the application moved by the accused-respondent seeking issuance of process for examination of Nazir Ahmad Joo, Manager J&K Bank Branch Chadoora and earlier counsel of the complainants Mr.A.R.Hanjura as defence witnesses, be dismissed.

5. After hearing both the parties and consideration of the rival submissions, learned Magistrate vide order dated 26.05.2018 did not find favour with the objections raised by the complainants to the extent of examining Nazir Ahmad Joo one of the complainants and Manager J&K Bank Branch Chadoora and ordered to recall them to be examined as witnesses of the accused, invoking Section 540 Cr PC. The application was also allowed to the extent of issuance of process for presence of Patwari Halqa Wathora with a direction to come with complete details of the property of accused Mohammad Afzal Baghat.

6. Contention of complainants to the extent of not allowing Mr. A.R.Hanjura as defence counsel was, however, agreed by the learned Magistrate in view of the provisions of Section 126 of Evidence Act Svt. 1977 due to the professional communication of the counsel by the client.

7. Having been aggrieved of the order dated 26.05.2018 passed by learned Magistrate, whereby the contention of complainants to not allow the plea of the accused to allow Nazir Ahmad Joo one of the complainants and Manager J&K Bank Branch Chadoora and Patwari Halqa Wathora as witnesses of the respondent-accused, the same has been challenged through this petition filed under Section 561-A Cr PC seeking quashment of process initiated by the impugn