S.311 CrPC Meant To Ensure There Is No Failure Of Justice Due To Mistake Of Parties In Bringing Valuable Evidence On Record: JKL High Court

A bench comprising Justice Sanjay Dhar observed,

"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 petitioner, also the complainant, had impugned the trial court order to the extent it only partly allowed his prayer and permitted examination of only one out of five prosecution witness. According to the petitioner, all these witnesses were acquainted with the facts of the case and were present on spot when the occurrence took place.

Justice Dhar observed that a bare perusal of Section 540 clearly suggests that there exists no limitation on the power of the Court, at any stage to which the trial may have reached, for 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 bench underscored.

Explaining the finer details of the provision and its essence to the criminal procedure the court observed that Section 540 CrPC comprise of two parts, while the first part is discretionary in nature the second part is mandatory and 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. Doing so ensures that the court does not miss an important witness because of any laxity from the parties, the bench maintained.

In the case at hand, the Court noted that trial court had not assigned any reason for declining the application and evidently, examination of two of the four remaining witnesses was essential to the just decision of the case.

Accordingly the bench partly set aside the order of the trial court and directed it to to summon and examine the two witnesses and conclude the trial of the case expeditiously, preferably within two months.

The Court also disagreed with the contention of respondent's counsel Adv Azim Pandith that the petitioner had no right to file an application or to intermeddle on behalf of the prosecution as it is only the Public Prosecutor who is vested with power to conduct the prosecution. It observed that since the application filed by the complainant was adopted by the prosecution, it implies that the application has been virtually filed on behalf of the prosecution.

Case Title: Khazir Mohammad Naikoo Vs UT of J&K

Citation: 2023 LiveLaw (JKL) 7

Coram: Justice Sanjay Dhar

Counsel For Petitioner: Mr Bilal Ahmad Malla

Counsel For Respondent: Ms Insha Haroon GA, Mr Azim Pandith for Resp 2

Click Here To Read Order