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Powers under section 540 CrPC are wide, but are required to be exercised sparingly particularly when the trial stands closed: High Court of J&K and Ladakh

While observing the Judgment of Hon’ble Supreme Court in Hoffman Andreas v. Inspector of Customs, reported in (2000) 10 SCC 430, the High Court of J&K and Ladakh opined that no doubt powers under section 540 CrPC are very wide but the same are required to be exercised sparingly particularly when the trial stands closed as in the instant case, Mohkam Din and others Vs State of J&K [CRM(M) No. 465/2019], the trial stood concluded and the matter was listed for judgment. It was through a learned bench of Hon’ble Mr. Justice Rajnesh Oswal.

The brief facts as narrated in the petition are that the prosecution evidence was closed and after recording the statements of the petitioners under section 342 Cr.P.C, the case was fixed for arguments as the petitioners did not examine any witness in their defence. It is further stated that, according to the complainant, no action was taken by the Police on the said complaint. The counsel for the petitioners asked the petitioners to verify from the said Police Station as to what happened to the said complaint lodged by the petitioners and the petitioners got the knowledge that complaint under section 107/117 Cr.P.C. was filed before Executive Magistrate and said complaint was dismissed and consigned to the records.

Thereafter, the petitioners approached this Court under section 561- A Cr.P.C. for directing the trial court to allow them to place on record certain documents and summoning the witnesses like complainant, the then SHO Police Station, Bahu Fort and Investigating Officer in FIR No. 69/2007. However, the said petition was dismissed by this Court with a liberty to the petitioners to lay a motion before the trial court. Thereafter, the petitioners filed an application under section 540 Cr.P.C. before the learned trial court for permission to place on record copy of the complaint presented before the Executive Magistrate, Jammu with regard to the alleged incident stated to have occurred on 02.03.2007 and for calling SHO Police Station, Bahu Fort, Investigating Officer of FIR No. 69/2007 dated 03.04.2007 lodged with the Police Station, Bahu Fort and the complainant-Qasim Din.

Mr. M. A. Bhat, learned counsel for the petitioners vehemently argued that the learned trial court has passed the order impugned against the mandate of provisions of section 540 Cr.P.C. and has deprived the petitioners of their right to prove the falsity of the case lodged against them.

The High Court, after hearing the parties, stated that “So far as complainant is concerned, he had already admitted that on 03.03.2007, he had filed the oral complaint with the Police Station, Bhau Fort. The petitioners have already cross-examined the complainant with regard to the report lodged by him orally on 03.03.2007. So, in view of the fact that complainant has already been cross-examined, he cannot be recalled for purpose of confronting with the documents. So far as Investigating Officer and SHO Bahu Fort are concerned, the controversy in the instant case is with regard to the commission of offence occurred on 02.03.2007 and not whether any complaint was lodged with Police on 03.03.2007. As such, they too are not required to be recalled/summoned as the case may be.”

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Judgment Reviewed by – Aryan Bajaj

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