Need that witness back? Section 540.

The power.

Section 540, CrPC.

“Any Court may, at any stage of any inquiry, trial or other proceeding under this Code summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or re-call and re-examine any person already examined; and the Court shall summon and examine or re-call and re-examine any such person if his evidence appears to it essential to the just decision of the case.”

Code of Criminal Procedure, 1898 · Section 540, Power to summon material witness or examine person present

Two parts.

Supreme Court, 2022 SCMR 1882.

• First part"May": discretion to summon, examine anyone present, or recall a witness.
• Second part"Shall": mandatory if the evidence appears essential to the just decision.
• The aimJustice for the accused, the prosecution and society.

Quick quiz. No 161.

Guess first, then swipe for the answer.

• A. No, never
• B. Yes, weight is then assessed
• C. Only if the accused agrees

Answer: B. No bar.

Supreme Court, 2022 SCMR 1882.

• The ruleNo bar on examining a witness under s.540 whose s.161 statement was not recorded.
• The safeguardIf it prejudices the accused, the evidence may or may not be acted upon.
• Not listed?A material witness can be summoned even if not in the calendar of witnesses.

Myth or fact?

The lacuna argument.

• Myth: Any s.540 application that fills a gap in the prosecution case must be refused.
• Fact: The test is whether the evidence is necessary. If it also fills a lacuna, that is "purely a subsidiary factor" (2022 SCMR 1882).

For the defence too.

Sindh High Court, 2016 PCrLJ 667.

• The factsA prosecution witness was never cross-examined by the defence.
• The orderThe trial court was told to re-summon him for cross-examination.
• The warningMiss that date, and no further chance.

265-F or 540?

Sindh High Court, PLD 2020 Sindh 32.

• s.265-FThe parties' prerogative: examine, withhold or give up a witness.
• s.540The court's power, for a just decision. Not for either side.
• On appealAn appellate court has no power to summon a witness on its own motion.

Draft it right.

What courts look for.

• Who and whyName the witness and the fact only he can prove.
• From the recordEssentiality can be inferred from the file. No separate inquiry is needed (PLD 2021 Bal. 127).
• Neutral aim"Just decision" does not mean for prosecution or defence (2021 PCrLJ 567).

Draft it with FAI.

Ask FAI in your own words. It answers with the exact section and the leading judgments.

• Recent Supreme Court cases on recalling a witness under section 540 CrPC.
• Draft an application under section 540 CrPC to recall a prosecution witness.

Example questions

What this does not mean

• Section 540 is the power of the court for a just decision, not a tool for either side. Choosing to examine, withhold or give up a witness is the prerogative of the parties under s.265-F (PLD 2020 Sindh 32).
• An appellate court has no power to summon a witness on its own motion (PLD 2020 Sindh 32).
• Evidence taken under s.540 is not automatically acted upon. If it prejudices the accused, it may or may not be relied on (2022 SCMR 1882).

Questions people ask

Sources

• Code of Criminal Procedure, 1898 · Section 540
  Power to summon material witness or examine person present Pakistan Code