The Jammu and Kashmir and Ladakh High Court ruled on Friday that under Section 540 J&K CrPC (akin to Section 311 of the central CrPC), witnesses examined by one party cannot be examined on behalf of the opposing party at its request.

The bench stated that "In the considered opinion of this Court the trial Magistrate on an application moved by the accused-respondent has invoked the provisions of Section 540 Cr.PC without asking for it. 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."

Justice M. A. Chowdhary further observed, "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. Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. 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."

The facts of the case were that a complaint was filed before Magistrate Chadoora's court under Section 138 of the Negotiable Instruments Act of 1881. The complainants-petitioners called as witnesses Nazir Ahmad Joo, Manager J&K Bank Branch Chadoora, Mohammad Yousuf Wani, and Ghulam Nabi Wani, who were said to have been cross-examined by counsel for the accused.

After hearing both parties and considering the opposing submissions that Nazir Ahmad Joo and Manager J&K Bank Branch Chadoora had already been examined as witnesses by the complainants and the accused had cross-examined them before being discharged, the Magistrate did not find favour with the complainants' objections and ordered that the other two witnesses be recalled for being examined as witnesses of the accused, invoking Sectio This order was the subject of the challenge before the bench.

"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