A close reading of provision of 540 CrPC indicates that it gives rather wide powers to the Court to examine any person as a court witness at any stage of the case. It enables the Court rather in certain situations imposes a duty on it to summon witnesses who could not otherwise be brought before the Court. The section consists of two parts: one giving discretionary power to the Court and the other imposing an obligation on it.
The Court cannot summarily dismiss an application for additional evidence in terms of section 540 Cr.P.C. by merely holding that either the said witness was not mentioned in the challan or that it was belated application or that it may fill up lacunas in prosecution case, unless the totality of material placedbefore it is considered to find out whether examination of the said witness is essential for a just decision of the case.
The Court has also to keep in mind that in trying a case it has to find out the truth to render a judgment in accord with canons of justice. If it finds that the investigation is defective, it cannot just sit idle as a timorous soul and has to exercise all the enabling provisions under the law including section 540, Cr.P.C. to discern the truth. For the purpose of this provision, the Court even without any formal application from prosecution or accused, can summon any person as witness or examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined.
As the names of persons mentioned in the application u/s 540 Cr.PC already mentioned in FIR as eye-witnesses, if their statements are recorded by the learned trial Court, no prejudice will be caused but if their statements are not allowed to be recorded, the petitioner/complainant may suffer from said act and may not get proper justice from the Court of law / learned trial Court.
Writ Petition No. 2280 of 2021Muhammad Maroof Versus The State and 04 others.
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