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Allahabad High Court · body

1994 DIGILAW 573 (ALL)

TEEKAM SINGH v. III RD ADDI. SESSIONS JUDGE

1994-09-01

C.A.RAHIM

body1994
C. A. RAHIM, J. ( 1 ) THIS is a revision against the order dated 19. 8. 1994 passed by learned III Additional Sessions Judge, Ghaziabad in Sessions Trial No. 36 of 1981. By that order learned Judge refused the prayer of the accused to recall two witnesses of the prosecution. It has been, argued that S. I. M. Singh, prepared the panchayatnamas of the deceased persons and one S. J. J. Singh, recorded the statement under section 161, Cr. P. C. of the witness Fakir Chandra Meharban. The contention of the learned counsel for the revisionists is that the prosecution did not examine those material witnesses and refused to summon the witnesses, would be fatal. The learned Judge by his order dated 19. 8. 1994 has stated that the accused persons took several adjournments on one pretext or the other and at the stage of argument filed this application only to delay the case. He has also found that there is no deficiency and if there is any deficiency the accused persons will get no benefit. ( 2 ) IN a sessions trial charge is framed under section 228, Cr. P. C. Thereafter, the evidence of the witnesses of the prosecution is taken under section 231, Cr. P. C. and if no acquittal is made under section 238, Cr. P. C. the accused is called upon to adduce evidence under section 233, Cr. P. C. It appears that this application was filed after that stage when arguments are ought to be conducted under section 234, Cr. P. C. From the order-sheet of the learned Judge it appears that the occurrence took place in the year 1977 and it was committed to the, Court of Sessions in January, 1981 and the Sessions Trial was prolonged at the instance of the accused persons for long 13 years and the statements of the accused persons were recorded under section 313 Cr. P. C. on 6. 7. 1993. So there was no reason to call for two police witnesses for the reasons that they are the witnesses of panchayatnama and that other witnesses sought to be examined from the side of the prosecution recorded statement of a witness under section 161 Cr. P. C. on 6. 7. 1993. So there was no reason to call for two police witnesses for the reasons that they are the witnesses of panchayatnama and that other witnesses sought to be examined from the side of the prosecution recorded statement of a witness under section 161 Cr. P. C. ( 3 ) IN the decision reported in (Govind Prasad Goenka v. State of U. P.) the courts have to act judicially and act upon the materials placed before it. But it is equally true that justice must be tempered with kindness and discretion curtailing the liberty of a citizen should be exercised with care and caution. The observation of Honble judge cuts both ways. It is also applicable to the complainant who is waiting for a decision for more than 13 years and the accused persons are filing petitions one after another to delay the proceeding. In the instant matter no prejudice has been caused to the accused by refusing to call for the witnesses in a belated stage, Those witnesses are not eye witnesses and I fully agree with the finding of the learned Sessions Judge that if there. has been any deficiency the accused persons will got benefit of it. ( 4 ) MOREOVER, I find that the order passed by the learned Judge is an interlocutory order. Learned counsel has submitted Govind Prasad Goenka case (supra) wherein it was held that any order curtailing. liberty of the citizen affects his rights and obligations and is naturally a final order. It do not find that the liberty of the accused persons have been curtailed by the learned Judge. ( 5 ) IN the case of Indrapuri Primary Cooperative Housing Society Ltd. and another v. Sri Bhabani Gogoi, it was held that the order which arc interlocutory are not final in the general sense but fall in the middle course being on intermediate or quasi final order. Matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial and which result in denial of fair trial to the accused, will not be interlocutory orders within the preview of section 397 (2), Cr. Matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial and which result in denial of fair trial to the accused, will not be interlocutory orders within the preview of section 397 (2), Cr. P. C. In a criminal trial the prosecution is to prove its own case if they fail to tender witnesses who will prove some documents and that too at a belated stage in the contexts that the case is being dragged for more than 13 years the prosecution will supra I do not find that rights and liberty of the accused have been curtailed and in other words any prejudice would have caused by that order to the accused persons. If due to that deficiency the prosecution is unable to prove certain documents the benefit will go to the accused and not to the prosecution. No affidavit supporting the contention of the revisionists has been filed. Considering all these aspects I find that there is no merit in this application and hence the revision is dismissed. Revision dismissed. .