STATE Vs. MOHD SHAFI

JUDGEMENT

(1.) THIS revision petition seeks to revise an order passed by Sessions Judge, Poonch in case titled as State Versus Mohd. Shafi and others on 4th April, 1985. The accused stand trial before the said court in terms of Sections 366.363, 212,342 and 109 of RPC. The trial court by virtue of the impugned order has closed the prosecution evidence Before discussing the merits of the case the impugned order has to cross the hurdle of not being an interlocutory order: because of it being so, the revision would not be maintainable. It is true that this order has been passed at an intermediate stage of the trial but the same cannot be said to be an interlocutory order. This order partly decides the controversy in the case and determines the right of a party. This point came up for consideration in Criminal Reference No. 60 of 1979 reported as S.LJ. 1981 J&K page 276. The Court was of the view that an order which although might be passed at an intermediate stage of the trial will be a final order, if it decides the controversy partly or wholly or finally determines any right of any person. It is recognised view of law that right to produce the evidence is implicit in right to prosecute and in case right to lead evidence is denied wholly or partially that amounts to adjudication of aright. In this view of the matter, an order which wholly or partly closes right of a party to lead evidence is a final order and cannot be termed to be an interlocutory one.

(2.) ADVERTISING to the merits of the case, it pains me to find that the trial court has committed hot haste in closing the evidence of the prosecution. Charge against the accused has been framed on 15th October 1984. I have perused the interim orders thereafter. The case seems to have been phased a couple of times and while the prosecution evidence was in pipe line, the impugned order has been passed and evidence closed. The witnesses are mainly official witnesses, who should have been summoned by the court because their attendance could not otherwise be procured through prosecuting agency

(3.) THERE is nothing on file to show that the prosecution has undertaken to produce the official witnesses on their own. In that view of the matter, it was incumbent upon the trial court to issue summons to the officials, which has not been done. In absence of any steps having been taken by the court to procure the attendance of these official witnesses the evidence of the prosecution could not have been closed.