MOHD SULTAN MALIK Vs. RAJA

JUDGEMENT

(1.) THE parties are absent despite the facts that they were directed by Session Judge, Badgam, to appear in the court is person. Even so the reference is utterly misconceived. An order passed by Munsiff Judicial Magistrate Chadura refusing to recall a witness u/s 540 Cr. Pr. Code was challaned in revision before the learned Sessions Judge. The learned Sessions Judge on examining the record of the case, was of the opinion that the material on the record justified resummoning of the witness by the court in exercise of its power u/s 540. A party has no right to summon a witness u/s 540. It is on the other hand the outlook of the court itself whether or not to summon a person as a witness u/s 540. Where a court refuses to exercise its discretion by not summoning a person or otherwise, it cannot by doing so said to have decided any right of the parties for as already, stated no right in a party existed to summon a witness u/s 540. Such an order is interlocutory in nature against which no revision is competent. The learned Sessions Judge, therefore, clearly exceeded his jurisdiction in entertaining the revision petition and exceeded it again in making a reference to this court, the revision petition pending before the learned Session Judge being incompetent, his reference to this court is clearly misconceived, which is rejected.