The essentiality of witness examination for a just decision of the case and the duty of the presiding judge to ensure proper proof of relevant facts.

1. All the four petitioners (to be referred as `accused’) are facing trial in case F.I.R. No. 250/2006 registered at Police Station Banihal under Sections 8/20 of Narcotic Drugs & Psychotropic Substances Act, 1985 (for short to be referred to as `NDPS Act’) for allegedly found to be in possession of 10 kg., (ten kilograms) of Charas. They are stated to be in custody since November, 2006.

2. Since the prosecution after availing many opportunities could not conclude its evidence, the learned trial Court vide order dated 04.11.2008 (Annexure-A) closed the evidence of prosecution and put the trial to next step i.e. recording the statement of the accused under Section 342 Cr.P.C., which was also done and after that accused were given an opportunity to lead evidence. When the case was amidst hearing arguments and the matter was being argued by the Public Prosecutor, an application under Section 540 Cr.P.C. was filed by the State for calling Investigating Officer and SDPO Banihal, which was opposed by the accused vehemently, but ultimately allowed by the learned Sessions Judge, Ramban vide impugned order dated 23.02.2010. A fixed particular date for recording the statement of the aforesaid two witnesses was fixed. Aggrieved of the said order, the accused have knocked the door of this Court through the instant criminal revision petition in which while issuing notice, further proceedings before the trial Court are stayed.

Pursuant to the notice, Mr. B.R. Chandan, Dy. AG has put in appearance. Trial Court record is also attached with the instant petition.

3. Heard Mr. P.N. Goja, Advocate, learned counsel for all the accused and Mr. B.R. Chandan, learned State counsel. Record also perused and the judgment reserved.

4. At the very outset, Mr. Chandan, learned State counsel submitted that the instant revision petition is not maintainable, as calling or refusing to call a witness during the trial is an interlocutory order. He cited Division Bench judgment of this Court in case `S. K. Mahajan v. Municipality, Jammu and ors.’ reported in 1982 Kashmir Law Journal 1, wherein in para 15, it is observed thus:-

"15. No party has a right to have a witness examined under Section 540. It can only draw 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 of 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 54O 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 decides 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 judgment, Untwalia J. in the case of Madhy Limaye v. State of Maharashtra clearly meant to

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