Y.P. Nargotra, J.
1. The respondent/accused is facing trial for commission of the offence under Section 363/511 R.P.C. under F.I.R. No. 128/99 in the Court of Chief Judicial Magistrate, Srinagar. The charges were framed against the accused by the trial court and prosecution was leading evidence and in the process on 31.7.2002 statement of prosecution witness Wasim Dar was recorded and then SPO moved an application for leave of the court for examining Bilal Ahmad Bhat and Imtiyaz Ahmad as witnesses of the prosecution though they had not been cited as witnesses in the calendar of witnesses in the charge sheet. Learned trial court treated the application under Section 540 Cr. P.C and furnished the copy of the same to the accused for filing objections on the next date. However in the same order closed the evidence of the prosecution.
2. The State has filed this petition under Section 561-A seeking to quash the order of the trial court on the plea that until the decision of the application, the evidence of the prosecution should not have been closed and instead of treating the application under Section 540 Cr. P.C, the application should have been treated as an application for leave to lead additional evidence.
3. The offence with which the accused is charged is to be tried as warrant case and the procedure for trial is to be followed as prescribed under Section 251A Cr. P.C. The charge sheet instituted on police report has to be in accordance with Section 173 Cr. P.C. Sub-section (5) of Section 173 mandates that police report must be accompanied by the statements recorded under Section 161 Cr. P.C. of all the persons whom the prosecution proposes to examine as its witnesses. Since the witnesses now sought to be examined by the prosecution had not been named in the charge sheet as such could not be called to be the witnesses of the prosecution upon whom the prosecution proposed to rely to prove the charge as alleged in the charge sheet. They are also not the witnesses whose evidence has been subsequently discovered by the further investigation carried out under Section 173(8) Cr. P.C. According to the averment made in the application P.W. Ghulam Qadir in his statement had disclosed about the presence of the witnesses sought to be produced were also present on the scene of occurrence. As such these two witnesses in the strict sense of the term could not be treated to be the prosecution witnesses' so as to entitle the prosecution to tender their evidence in its own right under Section 251(9) Cr. P.C. Their evidence could only be introduced by the prosecution with the leave of the court granted in exercise of powers vested under Section 540 Cr. P.C. The learned trial court as such rightly treated the application of prosecution under Section 540 Cr. P.C. and the same is still pending. The evidence of these two witnesses has not been shut out of the case by the trial court and, therefore, the prosecution cannot express any grievance.
4. Therefore, there is no merit in the petition which is dismissed.