DHARAM SINGH Vs. STATE

JUDGEMENT

(1.) THE facts giving rise to this criminal revision petition are that a case titled State Vs. Dharam Singh and others for offences under sections 302/307/326/447/148/149 R. P. C. is pending trial in the Court of the learned Sessions Judge, Jammu. In the calendar of witnesses, the prosecution had cited two witnesses, Janak Singh and Jagdev Singh besides other witnesses. While the evidence in the case was being recorded, on 16 -5 -1975, an application was moved by the accused -petitioners before the learned Sessions Judge stating therein that Jagdev Singh and Janak Singh have been given up by the prosecution "today" and that these two witnesses were the only dis -interested and independent witnesses and had reached the spot immediately after the occurrence. It was further stated that these witnesses were in a position to throw a flood of light on the facts and circumstances of the case, since they knew not only the facts as alleged by the prosecution but their knowledge of facts covered fairly large range of prosecution story. On the above basis the prayer made, by the accused -petitioners in the application, was that prosecution be directed to produce them for enabling the defence to cross -examine them or in the alternative the witness be summoned and examined in the Court as court -witnesses. It was also stated in this application that the accused counsel cannot take the risk of examining these witnesses as defence witnesses as the witnesses had in the beginning decided to appear for the prosecution." It was maintained that it was absolutely necessary in the interest of justice to examine these witnesses in the court in order to arrive at the truth. Notice of this application was given by the learned Sessions Judge to the Public Prosecutor and the objections were filed by the Public Prosecutor on July 5, 1975. Preliminary objection was taken to the effect that there is no provision in the Code of Criminal Procedure providing for summoning a witness only for the purpose of cross -examination by the defence. It was also stated in the objections that the prosecution had not given up the said witnesses on May 16, 1975 when the application was made and that by itself was enough to show that the defence had gained over those witnesses and had made the application containing a false averment on May 16, 1975 to the effect that the witnesses have been won over and had been given up as such. The witnesses were present in Court on July 4, 1975 and were given up by the Public Prosecutor as having been won over on that day. On September 6, 1975 the learned Sessions Judge passed an order on the said application of the petitioners dated May 16, 1975 observing therein that the two witnesses who had been given up had not to disclose any new facts in the case and the prosecution could not be compelled to produce those witnesses in support of its case. The learned Sessions Judge also held that the accused, if they so desired, could produce these witnesses in defence, and at that stage the learned Sessions Judge was of the view that since the defence evidence had yet to be recorded, it was not proper to exercise powers under section 540 of the Code of Criminal Procedure to call the above said witnesses as court witnesses. It is this order of the learned Sessions Judge against which the present revision has been filed before me.

(2.) I have heard the learned counsel for the parties at a great length,

(3.) MR . I. K. Kotwal, the learned counsel for the petitioners has vehemently argued that the prosecution after having cited the witnesses in its calendar of witnesses cannot be allowed to deprive the accused persons of their valuable right to cross -examine them by with -holding them and, even if the prosecution was not interested to produce those witnesses for one reason or the other, it was incumbent on them to produce the said witnesses .in the court to enable the defence to cross -examine them. The learned counsel further maintained that every accused has a valuable right to cross -examine the prosecution witnesses to establish his case and that right of the accused to cross -examine the prosecution witnesses can only be safe -guarded if the Public Prosecutor tenders such witness for cross -examination whom he does not wish to produce as his witness on the ground that the witness had been won over. Mr. Kotwal urged that the two witnesses given up were material witnesses as they were independent and disinterested and had arrived at the spot soon after the occurrence, and the defence was keen to put questions: to them in cross -examination. In the alternative it was prayed that in view of the fact that these witnesses were likely to throw a flood of light on the facts and circumstances of the case which might help the accused to establish their case and the court to do proper justice, those witnesses be summoned as Court witnesses under section 540 of the Code of Criminal Procedure. In substance the precise argument of Mr. Kotwal is that once a witness has been cited the prosecution is duty bound to produce the said witness in the court and if the prosecution does not wish to examine him it should tender him for the purpose of cross -examination by the defence counsel. Reliance has been placed by the learned counsel on AIR 1930 Cal. 134, AIR 1942 Bom. 71, A.I.R. 1953 Pat. 422, AIR 1964 Punjab 120 and AIR 1971 SC 1586. I shall refer to these authorities in the subsequent part of this judgment.