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2010 DIGILAW 3459 (ALL)

Ram Shanker Yadav v. State Of U. P.

2010-11-10

RAJ MANI CHAUHAN

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JUDGMENT: Raj Mani Chauhan,J. Heard learned counsel for the revisionist and learned Additional Government Advocate for the State as well as perused the documents available on record. This criminal revision under Section 397/401 of the Code of Criminal Procedure (hereinafter referred to as the 'Code') has been filed by the revisionist against the impugned order dated 29.10.201 passed by the learned Additional Sessions Judge/F.T.C.-III, Lucknow in Sessions Trial No. 332/08 (Crime No. 163/08, under Sections 323, 504,506, 376 IPC, P.S. Banthara, District Lucknow); State of U.P. Vs. Ram Shanker Yadav whereby the learned Additional Sessions Judge has allowed the application moved by the prosecution under Section 311 of the Code and summoned the prosecutrix - Neetu Yadav (P.W. 1) for re-examination. 2. The submission of learned counsel for the revisionist is that the P.W.1-Neetu Yadav had already been summoned by the court under Section 311 of the Code. The prosecution examined all the witnesses and the closed its evidence. The case was fixed for recording the statement of accused under Section 313 of the Code. The case was adjourned on three dates. The prosecution, thereafter, moved an application under Section 311 of the Code to summon the prosecutrix-Neetu Yadav for re-examination to prove the written report filed by her. The application was opposed by the accused but the learned Additional Sessions Judge vide impugned order has allowed the application with the observation that the statement of prosecutrix is necessary for proving the written report lodged by her at the police station regarding the incident. She has not been examined on this point earlier on account of some omission. Learned counsel submits that the prosecution just to fill up the lacuna of the prosecution case has moved the application which could not be allowed by the learned Additional Sessions Judge. The impugned order passed by the learned Additional Sessions Judge is illegal and is liable to be quashed. 3. Mr. Rajendra Kumar Dwivedi, learned A.G.A. opposed the revision and argued that the impugned order is an interlocutory order which has been held by this court in the case of Yogendra Singh Dohrey Vs. State of U.P. and Others reported in 2010 (71) ACC page 22. The court has placed reliance on the decision of the Hon'ble Apex Court in the case of Hanuman Ram Vs. State of Rajasthan and other reported in (2008) 15 SCC 652 and Sethuraman Vs. State of U.P. and Others reported in 2010 (71) ACC page 22. The court has placed reliance on the decision of the Hon'ble Apex Court in the case of Hanuman Ram Vs. State of Rajasthan and other reported in (2008) 15 SCC 652 and Sethuraman Vs. Raja Manickam reported in (2009) 5 SCC 153 . The revision against the interlocutory order is not maintainable. Learned A.G.A. further submits that the learned Additional Sessions Judge has summoned the prosecutrix on a particular point to prove the written report formally. No illegality or injustice is going to be caused to the accused. The impugned order does not suffer from any illegality. The revision has got no force on its merit too. The revision is, therefore, liable to be dismissed. Considered the submissions of learned counsel for the revisionist and learned A.G.A. for the State. 4. This court in the case of Yogendra Singh Dhorey Vs. State of U.P. and Others (supra) has specifically held that the order under Section 311 of the Code is an interlocutory order and such order is not revisable in view of the provision of Section 397 (2) of the Code. Moreover, from a perusal of the impugned order, it appears that the learned Additional Sessions Judge vide detailed and reasoned order has summoned the prosecutrix for re-examination on a particular point i.e. to prove the written report formally who could not be examined earlier on account of some omission. I do not find any illegality in the impugned order which does not call for any interference. The revision is not maintainable as well as it has got no merit too and is liable to be dismissed. The revision is, therefore, dismissed.