The court emphasized the discretionary and mandatory nature of the power of the court to summon and examine or recall any witness at any stage of the proceedings, and highlighted that the power should be exercised only for strong and valid reasons and in the interest of justice.

ORDER :

1. Petitioner has challenged order dated 17.03.2021, passed by the Principal Sessions Judge, Pulwama, whereby the learned Sessions Judge has declined to exercise his jurisdiction under Section 540 Cr.P.C. for summoning and examining two prosecution witnesses.

2. Before coming to the impugned order, it would be apt to refer to the facts leading to passing of the impugned order. It appears that the respondent is facing trial for offences under Section 302, 364, 201 RPC in a case arising out of FIR No. 135/2014 registered with Police Station Awantipora. The trial is pending before the Court of learned Principal Sessions Judge Pulwama. The case pertains to murder of one Firdous Ahmad Hurrah who is alleged to have been kidnapped and murdered by the accused, whereafter his dead body was recovered from river Jehlum. It appears that prosecution evidence was closed by the trial Court, whereafter statements of the accused under Section 342 Cr.P.C. have been recorded. The accused, it appears, have chosen not to produce any evidence in defence and the case has been set down for final hearing. At this stage the prosecution made an application before the learned trial Court seeking permission to summon and examine two prosecution witnesses, PW-1 Mohammad Anwar, ASI and PW-39 Captain Sandeep of 55 RR Camp Pulwama. The said application has been declined by the learned trial Court by virtue of the impugned order by observing that evidence of prosecution stands already closed and the said order has not been challenged. Allowing the application for summoning and examining the prosecution witnesses would amount to reviewing of order which is not permissible under law.

3. It has been contended by the petitioner that the order impugned is not in accordance with law as the trial Court has power under Section 540 Cr.P.C. to summon and examine or recall any witness at any stage of the proceedings. It is urged that the observation of the learned trial Court, that after closure of evidence of prosecution this power cannot be exercised, is not in accordance with law.

4. I have heard learned counsel for the parties and perused the record of the case.

5. Before coming to the merits of the petition and before testing the legality of the impugned order passed by the learned trial Court, it would be apt to notice the provisions contained in Section 540 of the J&K Criminal Procedure Code. It reads as under:

“540. Power to summon material witness, or examine person present - Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case.”

6. From a bare perusal of the aforesaid provision, it is clear that there is no limitation on the power of the Court at any stage to which the trial may have reached from summoning and examining any witness. The expressions used in the provision are “any person and at any stage of any enquiry, trial or other proceedings” which means that the Court has unfettered powers to exercise its jurisdiction under Section 540 of J&K Cr.P.C. at any stage of the proceedings, even after the conclusion of the trial before passing of the final judgment. The proceedings come to an end only after the judgment is pronounced. The aforesaid provision is in two parts. The first part is discretionary in nature, whereas the second part is mandatory in nature. Thus, a Court may, in its discretion, summon and examine any person as a witness who has not been summoned as a witness or recall/re-examine any person already examined and in case evidence of such person appears to the Court essential to the just decision of the case, it is the bounden duty of the Court to exercise its power under this provision. The object underlyi