1. This revision petition impugns the order dated 11.11.98 passed by Additional Sessions Judge Srinagar, in Session Trial No. 23 of 1996 titled State Vs. Farooq Ahmad Bajad and others for the offences punishable under sections 302,324 read with Section 34 R.P.C. on the allegations that on 26th of April 1996, the accused in the case having the common intention to cause murder of one Zubair Pakthoon cought hold of him at Pushkar Kanqan and subjected him to such a physical assault that led to causation of a fatal injury on his head as the result of the blow of lathi by accused Farooq Ahmad.

2. On the accuseds pleading not guilty to the charges, the prosecution examined its listed witnesses, which included the medical expert namely Dr. Qazi Javid Ahmad who had conducted autopsy on the dead body of the victim of the alleged murderous assault. After examination of the accused under section 342 Cr. P.C, they opted not to adduce any evidence in defence. Case was argued and the judgment reserved.

3. While preparing the judgment the learned trial judge felt that the medical expert, Dr. Qazi Javid Ahmad had not been examined with respect to those aspects of his opinion which were very relevant for the just decision of the case and consequently the learned Judge in exercise of his powers under section 540 Cr P.C. directed through the impugned order the recalling of the said witness so as to elicit his opinion on two pertinent points; namely, whether the lathi seized by the police as the alleged weapon of crime was a sharp-edged weapon, and secondly whether the fatal injury could be inflicted by a sharp or by a blunt edged weapon.

4. The accused are aggrieved of the impugned order as they feel that the recalling of the medical witness tantamounts to the filling up of the lacuna to their prejudice. Reliance is sought to be placed in this context on the decision in the case Younis Khan and others Vs. State (SLJ1990 J&K 204) to convass that once the prosecution evidence gets closed the witness(s) cannot be recalled to fill up the lacuna in the evidence.

5. The judgement in Younis Khans case is not applicable to the facts and the circumstances of this case. In the reported case it was at the bidding of the prosecution that the trial Magistrate by exercise of his powers under Section 540 had allowed the prayer for summoning of certain witnesses for the prosecution and that too after the prosecution evidence had been closed. Put in other words the Magistrate had exercised his powers in that case under part-one of Section 540 Cr.P.C. and this court held that the exercise of the power by the Magistrate was unwarranted and illegal. The order to that effect was thus quashed.

6. In the case at hand the factual matrix on which the impugned order is based is totally different. The trial Judge has in this case felt, of its own, that further examination of the medical witness was necessary for the just decision of the case and accordingly the learned Judge exercised the power under the second part of the Section. The ratio of Younis Khans case Supra, is therefore, not applicable to the present case.

7. Section 540 is in two parts. The word "may" used in the first part gives purely discretionary authority to the criminal court to enable, it at any stage of any enquiry, trial or other proceedings under the code, to summon any one as a witness or to examine any person present in the court or to recall and re-examine any person whose evidence has already been recorded. In the second part of the section, word "shall" is used which connotes that the court is obliged to take any of the above said steps if such evidence appears to it as essential for the just decision of the case.

8. While doing justice, the court cannot contain itself by finding fault with the prosecution agency. The role of the Presiding Judge is something more than an umpire or referee in games played, in the court proceedings the Presiding Judge has got to be alert, active and positive to pa

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