Law: Criminal Procedure Code (V of 1898)

Section: 439,540

(a) Criminal Procedure Code (V of 1898)--- ----S. 540---Qanun-e-Shahadat (10 of 1984), Preamble---Power to examine material witness or examine person present---Scope of S.540, Cr.P.C.---Re-examination/recalling of witnesses---Principles as to permissibility---Formal witness/constable not cross-examined by defence without any reason---Trial Court dismissed application filed under S.540, Cr.P.C. for re-examination of prosecution witness/constable---Accused contended that said witness, having received the parcel of the empties, had deposited the same in Forensic Science Laboratory, but Investigating Officer had not recorded his statement under S.161, Cr.P.C. and that statement of said witness was essential as said parcel had been submitted with a delay of sixteen days---No provision existed either in Cr.P.C. or Qanun-e-Shahadat, 1984 to recall a witness for re-examination---Discretion to summon a material witness was left to Trial Court under S.540, Cr.P.C.---Section 540. Cr.P.C. had two parts: in the first part, the discretion was with the court; while, the second part was mandatory---Purpose of S.540, Cr.P.C. was to empower the court with ample jurisdiction to ensure that court dug out truth during trial, so that no innocent was punished---If the court was of the view that evidence of a witness was to be recorded in order to reach a just conclusion of the case, then the court had powers to even re-examine any witness---No witness could, however, be re-called for examination to fill the lacuna left by defence or prosecution---Witness could only be recalled for examination in exceptional cases, where interest of justice thus demanded to rectify an obvious mistake---Accused, in the present case, could not satisfy the court as to why he had chosen not to cross-examine the said witness---Witness, sought to be recalled, was formal witness, and not recalling him would not amount to miscarriage of justice in any way---Statements of all witnesses had already been recorded and the case was fixed for final arguments---Revision petition was dismissed accordingly. (b) Criminal Procedure Code (V of 1898)--- ----S. 439---High Court's power of revision---Scope---High Court can…

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