LASSI DAR Vs. STATE OF J AND K

JUDGEMENT

(1.) Criminal case entitled State v. Lassi Dar and Ors. under S. 436 R.P.C. is pending disposal in the court of Sessions Judge, Baramulla. The case was at the stage of announcing the judgment when the Public Prosecutor on behalf of the State, moved an application for examining four witnesses in support of the prosecution case. Learned Sessions Judge, after inviting objections from the accused, allowed the prayer of the prosecution holding that the evidence of the witnesses in question is essential and imperative for the just decision of the case. Aggrieved by this order, the accused persons have filed the present petition invoking the inherent powers of this Court to quash the abovesaid order of the trial court being patently erroneous in law.

(2.) I have heard learned counsel for the petitioners as well as learned Chief Govt. Advocate. I have also perused the record before me. Before discussing the law on the point, let us examine the background of the prosecution case. The above referred case was filed somewhere in Oct. 1979 and it remained pending before the trial court up to June 4, 1982, when learned Sessions Judge heard arguments in the case and fixed it for announcing the judgment on June 22, 1982. On this date, an application was filed by the public prosecutor for summoning four prosecution witnesses mentioned therein which, according to him, were essential to come to a just conclusion. Admittedly, these witnesses were neither examined by the Investigating Officer nor their names existed in the challan. The trial in the case concluded on June 4, 1981 when defence evidence was closed and the case was fixed for arguments on 20th July 1981. The case remained pending for completely one year and various adjournments. During this long period, the prosecution remained silent and did not move any application for summoning the witnesses. It was only during the period when the case had been fixed for pronouncing the judgment that an application under S. 540 Cr. P.C., was moved for summoning four additional witnesses.

(3.) The short point for consideration in this case is :whether the Sessions Judge was justified in allowing the application of the prosecution to summon the prosecution witnesses at this stage. Such a question came up for consideration before the Punjab and Haryana High Court in case Santokh Singh v. State of Haryana, 1975 Chand (Cri) LR 119, wherein it was held that the prosecution cannot be allowed to fill up the lacuna in its case especially when the trial has already concluded and the powers under S. 540 Cr. P.C. should not be exercised to the disadvantage of the accused in particular after his defence has been closed. This view was based on the authorities reported as AIR 1968 SC 178 : (1968 Cri LJ 231) and AIR 1951 Mad 707 : (1951 (52) Cri LJ 673). .