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2004 DIGILAW 104 (CHH)

H. S. HAIDRI v. STATE OF CHHATTISGARH

2004-05-15

L.C.BHADOO

body2004
L. C. BHADOO, J. ( 1 ) HEARD both the counsel. ( 2 ) THE accused/applicant has preferred this criminal revision being aggrieved by the order dated 22/3/2004 passed by the 1st Additional Sessions and Special Judge, Raipur in Special case No. 7/2002 titled as State of Chhattisgarh v. HS. Haidari, whereby the learned Special Judge has refused the request of the applicant to recall Mr. N. S. Choubey, Inspector, for further cross- examination and also refused to summon some defence witnesses. ( 3 ) BRIEF facts giving rise to filing of this revision petition are that Smt. Pushpa Upadhyay presented a complaint on 6/10/2001 before the Special Police Establishment on the ground that the accused/applicant who was working as Accountant in Public Health Centre, Gariaband, did not add the arrears of increment in her salary pay bill and he demanded Rs. 500/- as bribe for favour. On the complaint of Smt. Pushpa Udadhyay, on 8/10/2001 a trap party was constituted and the trap was arranged. The accused/applicant was caught red-handed taking the bribe, and accordingly, he was arrested. After completion of the investigation, charge sheet for commission of offence punishable under Section 7 read with Sections 13 (1) (d) and 13 (2) of the Prevention of Corruption Act was filed against the accused applicant. The learned Special Judge after framing the charge of the aforesaid offence asked the prosecution to adduce the evidence. The prosecution examined all the witnesses. Thereafter, the statement of the accused was recorded and the accused wasasked to enter into his defence to which the accused/appellant furnished the list of defence witnesses and requested to summon them to examine them in defence. Learned Special Judge vide the impugned order, rejected the application of the applicant to recall Mr. N. S. Coubey under Section 311 of the Cr. P. C. and at the same time rejected to summon the defence witnesses mentioned in the order. ( 4 ) LEARNED counsel for the accused applicant submitted that he is not pressing for recalling of Mr. N. S. Choubey and other witnesses. His only prayer is that his request to summon Mr. T. C. Yadu has been rejected on an unreasonable ground, as the accused is challenging the sanction issued by Mr. T. C. Yadu while working as Additional Law Secre-tary on the ground that Mr. N. S. Choubey and other witnesses. His only prayer is that his request to summon Mr. T. C. Yadu has been rejected on an unreasonable ground, as the accused is challenging the sanction issued by Mr. T. C. Yadu while working as Additional Law Secre-tary on the ground that Mr. T. C. Yadu issued the sanction without application of mind and since the prosecution has not examined Mr. T. C. Yadu in order to prove the sanction and they have produ-ced only a clerk namely, one Dinesh Kadam to prove the sanction and in cross-examination, he has not been able to give the answer about the application of mind by Mr. T. C. Yadu. Therefore, in the circumstances, his examination is essential in order to ascertain whether before issuing the sanction, he issued the sanction after perusal of the relevant record and with application of mind. ( 5 ) ON the other hand, learned Govt. Advocate supported the order of the trial Court and argued that the exami-nation of Mr. T. C. Yadu is not necessary. ( 6 ) PERUSAL of the impugned order reveals that the learned Special Judge recorded that it is not justified to summon the judicial officer to give evidence in contravention of the directions issued by the High Court but he has not mentioned that how and what are the directions issued by the High Court since Mr. T. C. Yadu issued the sanction in capacity of Additional Law Secretary and the accused is particularly challenging the sanction on the ground that the sanction was not issued after perusal of the record and application of mind. ( 7 ) IN the given circumstances, I am of the opinion that the impugned order to this extent is not legal. Learned Special Judge ought to have summoned Mr. T. C. Yadu to give his evidence. There-fore, the order of the trial Court cannot be sustained to this extent. Accordingly, the criminal revision is allowed to this extent and the trial Court is directed to summon T. C. Yadu as the defence witness. The revision petition is disposed of. Consequently, M. (Cri.) P. No. 10 14/2004 and l. A. No. 1419/2004 also stand disposed of. Parties are entitled for certified copy of this order. Revision allowed. --- *** --- .