1. Ajit Kumar accused is facing trial before the learned Judicial Magistrate Ist Class (Munsiff),Jammu for offence under Sections 419,420 and 468 RPC.

2. The evidence of the prosecution was closed on 25.08.1995. Thereafter, prosecution moved an application under Section 540 Cr.P.C. on 27.08.1996 and same was dismissed on 12.01.1998. Another application under Section 540 Cr.P.C. came to be moved by the prosecution and same was also dismissed on 18.08.2003. Aggrieved by the order dated 25.08.1995 and 18.08.2003, dismissing applications filed under Section 540 Cr.P.C., State filed revision petition before the learned Sessions Judge, Jammu, who has referred the matter to this court by observing as under:

.. Thus in these circumstances the order dated 25.08.1995 closing the evidence of the prosecution in a serious matter of forging the order of the Apex Court in a contempt case when there is nothing to infer that the witnesses are not available is bad and improper and as such suffers from illegality require to be set aside. The revision as such is sent to the Registrar Judicial High Court of J&K at Jammu for placing the same before the Hon™ble High Court for appropriate orders.

3. Before making reference to this court, learned Sessions Judge has taken note of a Division Bench judgment of this court in case S.K.Mahajan Vs. Municipality, Jammu and others 1982 KLJ page No.1, wherein it has been held that refusing to summon witnesses under Section 540 Cr.P.C is an interlocutory order and attracts a bar under sub-Section 4-a of Section 435 of Cr.P.C. The Division Bench has observed as under: -

15. No party has a right to have a witness examined under Section 540. It can only drawn the attention of the court by making a prayer to that effect. Whether or not a witness is to be examined under this section, the discretion entirely lies with the court, though it may be obligatory on its part to summon the witness in case his evidence appears to it to be essential for the just decision of the case. Nevertheless, it is the requirement of the court and not that aof the party to see whether or not a witness is to be examined. Viewed thus, an order granting or refusing the prayer of the party to have a witness examined under Section 540 cannot be said to have determined any right of the parties and consequently fails to acquire the flavour of a final order. It is an interlocutory order, pure and simple. I am not prepared to accept the proposition, which to me too narrowly stated, that unless the order brings an end to the proceeding in which it is made, it cannot be said to be a final order. This, in fact, was the connotation placed upon the expression final order in Kuppaswami™s case (supra). But it was not accepted by the Supreme Court in Madhu Limay™s and V.C. Shukla™s cases (supra). The apparent conflict was, however, sought to be avoided by creating a third category of orders to be known as intermediate orders as would appear from the following observations made by His Lordships S.M. F.Ali J, expressing the majority view in V.C. Shukla™s case (supra):

To sum up, the essential attribute of an interlocutory order is that it merely decided some point or matter essential to the issues sought but not a final decision or judgment on the matter in issue. An intermediate order is one which is made between the commencement of an action and the entry of the Judgement, Untwalia J. In the case of Madhy Limaye Vs. State of Maharashtra clearly to convey that an order framing charge is not an interlocutory order but is an intermediate order as defined in the passage, extracted above, in Corpus Juris Secundum, Vol. 60. We find ourselves in complete agreement with the observations made in Corpus Juris Securdum. It is obvious that an order of framing the charge being an intermediate order falls squarely within the ordinary and natural meaning of the term interlocutory order as used in S.11 (1) of the Act.

4. In view of the law laid down , note of which has bee

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