- (1.) THIS revision petition has been directed against on order dt. 14 -6 -83 passed by Judicial Magistrate. Ganderbal, whereby u/s 450 Cr. P.C. Prosecution witnesses have been called for crossed examination, by the accused.
(2.) THE facts which gave rise to this revision petition are : that in the year 1976 a challan was presented before the Judicial magistrate u/s 307, 326 RPC The learned trial magistrate, after concluding the enquiry u/s 207 A Cr. P C. for Government came to the conclusion that only an offence u/s 326/341 RPC was made out against the accused which was friable by that court. Therefore, learned trial magistrate on 24 -X -1978, framed the charge u/s 326/341 RPC against the accused petitioners and decided try the case himself. Since the accused -petitioners pleaded not guilty to the charge framed against them, the prosecution was called upon to produce evidence in the case. It needs to be mentioned here that committal proceedings u/s 207 -A Cr, P.C. were omitted by Amendment in the Cr. P.C. in 1978. The learned Magistrate gave the prosecution opportunity to lead evidence in support of the charge. It appears that on 23 -11 -79. The learned Judicial Magistrate, closed the prosecution evidence. Again on an application dt. 10 -12 -79 filed by the prosecution for summoning certain witnesses, as court witnesses, the learned Judicial Magistrate, passed an order on 15 -9 -80 for summoning certain witnesses, opportunities were being given to the prosecution to produce the witnesses when on 16 -8 -82 the prosecution evidence was finally closed by the learned trial Magistrate and the case was listed for hearing. During the course of arguments, the learned trial magistrate, passed the impugned order dt. 14 -6 -83 under challenge directing certain witnesses mentioned in the order who were examined u/s 207 -A Cr. P.C. at the enquiry stage for cross -examination of the accused invoking powers u/s 540 Cr. P.C. and it is against this order the accused -petitioners have come in revision before this court.
(3.) I have heard learned counsel for both the parties and perused the original file, also. The short point involved in this case is, whether statements recorded during enquiry u/s 207 -A Cr. P.C. could be made use of at the trial and whether the court can recall witnesses examined at enquiry for cross -examination by the accused, when evidence of such witnesses has been closed at the trial. The order is to be tested under the provisions of S. 540 Cr. P.C. which gives the power to the court to examine witnesses not already examined or recall witnesses for examination if their evidence, appears, to the court essential to just decision of the case. S. 450 Cr. P.C, need to be quoted for appreciation hereunder: - 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 witness or examine any person in attendance, through 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".;