STATE Vs. SHEETAL SINGH

JUDGEMENT

(1.) ITS prayer to record on commission the statement of Registrar Examinations, University of Lahore (Pakistan) having been refused by the courts below, the prosecution has come up in revision to this court.

(2.) TWO students of the same name, Shital Singh were, studying in St. Joseph High School, Baramulla, in the year 1947. The ease of the prosecution is that only one of them had appeared in the Matriculation Examination held by the University of Punjab in March 1947 under Roll No. 38932 and was declared successful. The respondent who never appeared in that examination later on obtained a certificate from the University of East Punjab after partition of the country by making fraudulent representation to the University authorities that he had been declared successful in Matriculation Examination held by the erstwhile University of Punjab in March 1947 and thereby got into army service. Investigation of the case was conducted by the C.B.I. for a little more than a year and a challan u/s 420 I.P.C. was put up against the respondent in the court of Chief Judicial Magistrate, Jammu after collecting a mass of evidence. The prosecution cited as many as thirty -eight witnesses. Almost all the material witnesses which it examined during the trial to prove the aforesaid charge having gone against it, an application was moved by the prosecution u/s 540 Cr.P.C. that statement of the Registrar, Examinations, University of Lahore, be recorded on commission as according to it, the same was essential for the just decision of the case. The trial court held that it was not so, rather the prosecution wanted to fill up the lacuna in its case which could not be permitted by invoking the discretionary powers of the court u/s 540. A revision from this order was taken to Sessions Judge, Jammu, but that too failed, hence the present petition.

(3.) APPEARING for the State, the learned Addl. Advocate General has taken two grounds in support of the petition. His first ground is that under sub -section (7) of Sec. 251 -A Cr. P. C. the prosecution had a right to ask the trial court to record the statement of the Registrar as its witness. His other ground is that the statement of the witness being essential for the just decision of the case, the trial court had no option but to record the statement as the case clearly fell under the later part of sec. 540. Mr. Bakhshi on the other hand has raised a preliminary objection that the order passed by the trial court being an interlocutory one, no revision lay against it. As I am of the view that the prosecution has no case even on merits I do not propose to express my opinion on the preliminary objection. I will, for the sake of arguments, assume that the order sought to be revised is not an interlocutory order,