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2009 DIGILAW 3267 (ALL)

MOHIT v. STATE OF U. P.

2009-10-13

AMAR SARAN

body2009
JUDGMENT Hon’ble Amar Saran, J.—Heard learned counsel for the revisionist and learned Additional Government Advocate. 2. This revision has been preferred against an order dated 11.8.2009 passed by the Additional District and Sessions Judge, Court No. 17, Bulandshahr in S.T. No. 1278 of 2001 whereby on the basis of an application moved by the prosecution, an earlier order passed by the Court on 29.7.2009, was modified and the witnesses namely, Shri Arvind Kumar Pandey, C.O, Shri Manoj Kumar Jha, C.O, Shri K.R. Mehandi Dutta, SDM and Dr. Anuj Kumar Jain, who were earlier sought to be summoned as Court witnesses, have been summoned as defence witnesses. 3. In this connection, it is argued by the learned counsel for the revisionist that the dying declaration of the deceased Anuradha had been recorded by the SDM, K.R. Mehandi Dutta, wherein she has stated that she has got burnt accidentally, but the same dying declaration had been suppressed by the prosecution. 4. Initially a final report was submitted in favour of the revisionist and other accused, but after protest petition by the complainant-Ram Avtar Sharma, reinvestigation was conducted and charge sheet was submitted against the revisionist and others. After the evidence of the witnesses was recorded and a date was fixed for recording 313, Cr.P.C. statement of the accused, an application was moved on behalf of the defence praying for examination of the aforesaid four witnesses for a just decision of the case. The trial Court rejected the application. 5. Being aggrieved by the order dated 6.5.2009 passed by the Additional Sessions Judge/FTC No. 17, Bulandshahr rejecting the application under Section 311, Cr.P.C. for summoning the aforesaid witnesses, the revisionist moved an earlier Criminal Revision No. 2099 of 2009, wherein an order was passed by this Court that as it was argued by Shri Kakkar that the said witnesses were material witnesses for the just decision of the case, it was observed that “ as the right of the revisionist to summon the witnesses has not been finished by the impugned order, therefore, the order cannot give rise to an occasion to file a revision. The revision is disposed of with this observation that the revisionist may apply for the summoning of the witnesses when he enters into his defence.” 6. In pursuance of the said order the revisionist then moved an application on 29.7.2009. The revision is disposed of with this observation that the revisionist may apply for the summoning of the witnesses when he enters into his defence.” 6. In pursuance of the said order the revisionist then moved an application on 29.7.2009. However, in the said application, he prayed that the afore-mentioned four witnesses be summoned as Court witnesses, wherein a brief order was passed “Heard. Ground sufficient. The named witnesses be summoned for date fixed.” 7. An application was thereafter moved by the complainant-opposite party No. 2 on 11.8.2009 that the High Court had directed that the witnesses be summoned as defence witnesses and that the prosecution could not be compelled to produce its witnesses as prosecution or Court witnesses. The trial Court thereafter passed the impugned order dated 11.8.2009 holding that after hearing the parties and on a perusal of the High Court’s order it was clear that the witnesses were to be summoned as defence witnesses, hence the said witnesses may be summoned as defence witnesses. 8. It is argued by Shri Kakkar that the said order amounts to a review of the earlier order passed by the learned trial Court on 29.7.2009, which was not permissible in view of Section 362, Cr.P.C. 9. I am not in agreement with this contention. The order dated 29.7.2009 was simply an order observing that there was sufficient ground for summoning the new named witnesses and merely because in the application the revisionist had prayed that the said witnesses be summoned as Court witnesses, the order, which had only directed that the named witnesses be summoned, was not a direction for summoning the witnesses as Court witnesses. 10. Furthermore, the High Court’s order dated 26.5.2009 had also only observed that the revisionist could apply for summoning of the witnesses when he enters into his defence. The normal inference from such an order would be that the witnesses would be summoned as defence witnesses and the plea of the revisionist to summon the witnesses was being rejected at the stage when the application was moved in pursuance of the earlier order of the High Court. 11. Also an order summoning the witnesses is essentially an interlocutory order and Section 362 of the Code of Criminal Procedure prohibits a Court from altering a judgment or final order disposing of a case and not any interlocutory order, i.e. it passes on an application. 11. Also an order summoning the witnesses is essentially an interlocutory order and Section 362 of the Code of Criminal Procedure prohibits a Court from altering a judgment or final order disposing of a case and not any interlocutory order, i.e. it passes on an application. Section 362 Cr.P.C. may be usefully perused in this connection : “362. Court not to alter judgment.—Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.” 12. Even otherwise, as held by the Apex Court in State of U.P. v. Babu Ram, 2000 (4) SCC 515 , that nothing turns on the fact whether the witnesses are summoned as defence witnesses or prosecution witnesses or Court witnesses. 13. In case the witness gives testimony adverse to the party, which summons him as prosecution witness or defence witness, the said party has a right to re-examine the said witness after his cross-examination under Section 137 of the Evidence Act. 14. For all these reasons, I find no illegality in the impugned order. 15. The revision is accordingly dismissed. ————