Witness Appearing For Complainant And Cross-Examined By Accused Cannot Be Called To Appear As Defence Witness: J&K&L High Court

Justice M A Chowdhary observed,

"The question to be decided by the learned trial Magistrate was as to whether the witnesses examined by the complainants can be asked to appear as witnesses for the defence. Even if the learned Magistrate was of the view that certain clarifications were required to be made by these witnesses while being cross examined and re-examined during trial, it could not be legally tenable to call these witnesses on behalf of the opposite party. At the most these witnesses could have been summoned as complainants' witnesses for their further cross examination, if same was required."

The bench added, "Provision of Section 540 Cr.PC is to be invoked by the courts only in order to meet the ends of justice, for strong and valid reasons, and this power has to be exercised with great caution and circumspection. The determinative factor should therefore, be whether the summoning/re-calling of the witnesses is in-fact essential to the just decision of the case".

The observations were made by the bench while hearing a plea in terms of which the petitioner had challenged Magistrate's order on the ground that a witness produced by prosecution/complainant, properly examined, and cross examined by the counsel for the accused, cannot be called as a witness on behalf of the defence unless he is recalled by the court on an application moved by either of the parties and has to depose only then on behalf of the party which had produced him or as a court witness.

The facts of the instant matter where that a complaint under Section 138 of Negotiable Instruments Act 1881 came to be filed before the court of Magistrate Chadoora. The complainants-petitioners examined Nazir Ahmad Joo, Manager J&K Bank Branch Chadoora, Mohammad Yousuf Wani and Ghulam Nabi Wani as complainants' witnesses which were stated to have been duly cross examined by counsel for the accused.

Subsequently the respondent-accused filed the application mentioning therein the list of defence witnesses seeking issuance of process for presence of Nazir Ahmad Joo, Advocate A.R.Hanjura, Manager J&K Bank Branch Chadoora and Patwari Halqa Wathora as witnesses.

After hearing both the parties and consideration of the rival submissions that Nazir Ahmad Joo and Manager J&K Bank Branch Chadoora had already been examined by the complainants as their witnesses and the accused had cross examined them before being discharged, the Magistrate did not find favour with the objections raised by the complainants and leaving one of them ordered the other two witnesses be recalled for being examined as witnesses of the accused, invoking Section 540 CrPC. It was this order that was the subject matter of challenge before the bench.

Deciding the matter in controversy the bench observed that fair trial entails the interests of the accused, the victim and of the society, therefore, fair trial includes the grant of fair and proper opportunities to the person concerned and the same must be ensured as this is a constitutional as well as a human right. Thus, under no circumstances can a person's right to fair trial be jeopardized and the exercise of this power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice, the bench underscored.

"Provision of Section 540 Cr.PC is to be invoked by the courts only in order to meet the ends of justice, for strong and valid reasons, and this power has to be exercised with great caution and circumspection. The determinative factor should therefore, be whether the summoning/re-calling of the witnesses is in-fact essential to the just decision of the case", the bench added.

Applying the law to the case at hand the bench explained that the trial Magistrate on an application moved by the accused-respondent has invoked the provisions of Section 540 Cr.PC without asking for it as the question to be decided by the trial Magistrate was solely as to whether the witnesses examined by the complainants can be asked to appear as witnesses for the defence.

"As a sequel to the afore-stated reasons and to secure the ends of justice, the impugned order is required to be set aside, partially, the impugned order is resultantly quashed to the extent of calling Nazir Ahmad Joo, Manager J&K Bank Branch Chadoora and Patwari Halqa Wathora, as witnesses on behalf of the accused-respondent", the bench concluded.

Case Title : Azra & ors Vs Mohammad Afzal Baghat

Citation : 2022 LiveLaw (JKL) 212

Click Here To Read/Download Order