ORDER : 1. This Criminal Revision, under Section 401/397 of Code of Criminal Procedure (CrPC), has been preferred by Sri Rajen Gohain who has been arraigned as accused No. 7 in CR Case No. 3242/2014, pending in the Court of Sri S.K. Das, Judicial Magistrate 1st Class, Kamrup (Metro), Guwahati, challenging the order dated 13.07.2017 passed in the afore-noted case. 2. I propose to dispose of this revision petition at the motion stage itself after hearing Mr. Z. Kamar, the learned Senior Counsel assisted by Mr. T.N. Das for the petitioner and Mr. A.M. Bora, the learned Senior Counsel for the respondent No. 1. 3. The facts of the complaint case need not be set out in details but suffice it would be to point that that a complaint case for the offences under Section 499/500/501/34/35 of Indian Penal Code (IPC) was filed by the respondent No. 1, as complainant, against the petitioner and few others. The learned trial Court, after recording the statement of the complainant, took cognizance against all the accused impleaded in the complaint petition and issued processes against them. The process, however, could not be served upon the accused No. 5, who was named as “The Correspondent from Sonari, ASOMIYA PRATIDIN”. The order dated 02.06.2016, passed in the aforementioned case, reveals that the learned trial Court stopped the proceedings against the accused No. 5 as his identity particulars were not furnished by the complainant so as to secure his presence in the Court. 4. After the proceedings were stopped against accused No. 5, offences were explained to the remaining accused persons and the case was set for trial. The complainant adduced his evidence. At the closure of prosecution evidence, the accused persons were examined, as required under Section 313 CrPC. The accused 1, 2, 3, 4 & 6 expressed their desire to adduce defence evidence and accordingly the case was set for defence evidence. The accused 1, 2, 3, 4 & 6 proposed to examine one Sri Surya Borah, Sonari Correspondent of Asomiya Pratidin newspaper which was objected to by the petitioner by filing a petition No. 1365/17 on 21.4.17 wherein he stated since the said Correspondent has already been arraigned as accused he cannot be examined as witnesses. It was, therefore, prayed by the petitioner that the Court be pleased not to record the evidence of Sri Surya Borah. 5. It was, therefore, prayed by the petitioner that the Court be pleased not to record the evidence of Sri Surya Borah. 5. The learned trial Court disposed of the petition No. 1365/17 by its order dated 18.05.2017 observing that cognizance was taken against Correspondent of Sonari of Asomiya Pratidin and not against any person and that the Court is not clear who the person was. On these premises the learned trial Court rejected the petition No. 1365/17 and posted the case for defence evidence. 6. As proceedings of the case progressed further, the learned trial Court examined Sri Surya Borah on 09.06.2017 as defence witness who identified himself as local Correspondent of Asomiya Pratidin, Sonari. The petitioner, then filed a petition No. 4045 on 09.06.2017 urging the Court to ascertain the identity of the accused No. 5, Sonari Correspondent of Asomiya Pratidin newspaper. The learned trial Court, by its order dated 13.07.2017, disposed of the petition No. 4045 dated 09.06.2017 holding that since no offence has been made out against accused No. 5 he could not be impleaded as accused by invoking powers under Section 319 CrPC. The petition No. 4045 was, thus, rejected and the case was posted for cross examination of defence witness. 7. It is against the order dated 13.07.2017 the petitioner has approached this Court. 8. Mr. Kamar, the learned Senior Counsel appearing for the petitioner, submitted that the learned trial Court erroneously invoked the provisions under Section 319 CrPC which was not the subject matter of the petition. It is also submitted that the learned trial Court failed to appreciate the fact that once it is established that the accused No. 5 is none but Sri Surya Borah, the Sonari local Correspondent of Asomiya Pratidin the learned trial Court could not have examined him as defence witness to the prejudice of the petitioner. 9. On the other hand, Mr. A.M. Bora, learned Senior Counsel appearing for the respondent No. 1, submitted that there is no bar to the examining of Sri Surya Borah as defence witness and the present petition is lacking in merits on all counts and is accordingly liable to be dismissed. 10. One of the essential attributes of fair trial is procedural fairness to the accused standing trial. 10. One of the essential attributes of fair trial is procedural fairness to the accused standing trial. The Code of Criminal Procedure is replete with various checks and balances, the sole objective of which is to ensure that trial of the accused persons are not prejudiced, thereby, putting the Court in a situation to take a view which the Court ought not to have taken. The right of adducing evidence indefence is one such right vested in the accused person which seeks to preserve his right to fair trial. 11. The moot question which arises in this case is if there is any conflict of interest among the accused persons themselves, can one set of accused persons be denied an opportunity to adduce evidence in their defence for the mere reason that the other set of accused is likely to be prejudiced by his evidence? 12. The case being tried as summons case Section 254 CrPC provides as follows; S. 254. Procedure when not convicted.— (1) If the Magistrate does not convict the accused under Section 252 or Section 253, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence. 13. Alongside Section 254 CrPC I may also reproduce Section 315 CrPC which provides as follows; S. 315. Accused person to be competent witness.—(1) Any person accused of an offence before a Criminal Court shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial: Provided that— (a) he shall not be called as a witness except on his own request in writing; (b) his failure to give evidence shall not be made the subject of any comment by any of the parties or the Court or give rise to any presumption against himself or any person charged together with him at the same trial. 14. It will be seen that whenever, in the course of a trial, an opportunity for adducing defence evidence arises, two categories of persons can adduce defence evidence. Firstly, those who are not accused in the case and secondly who is/are accused in the case. 14. It will be seen that whenever, in the course of a trial, an opportunity for adducing defence evidence arises, two categories of persons can adduce defence evidence. Firstly, those who are not accused in the case and secondly who is/are accused in the case. So far as person who are not accused in the case are concerned they can be straightaway examined as witness and law does not attach any qualification except to the extent that the name of such person should appear in the list of witnesses filed by the accused person. The evidence of such a witness can be recorded on oath. However, if a person who is already an accused in the case proposes to examine himself as witness, he has to submit a petition in writing expressing his desire to examine himself as witness, and secondly, no oath can be administered to such an accused who desires to examine himself as witness. 15. The question which arises is, whether Sri Surya Borah is an accused in this case or he is not an accused. 16. Admittedly, by order dated 02.06.2016, Annexure-II to the petition, the proceedings were stopped against accused No. 5. This order was neither challenged by the petitioner nor by the respondent No. 1. The order has, thus, attained finality and hence the question of its legality/illegality cannot be gone into. The moment the order dated 02.06.2016 was passed, stopping all proceedings against accused No. 5, he ceased to be an accused in this case. Hence, even if it is assumed that Sri Surya Borah is infact the accused No. 5 of the case, his examination as defence witness, by accused No. 1, 2, 3, 4 & 6 will be in the nature of examining a person as defence witness other than an accused keeping in view the fact that the proceedings against him was stopped, as indicated above. The qualifications attached to the examination of an accused as defence witness, under Section 315 CrPC, will not be applicable to Sri Surya Borah. On the other hand, assuming that no order in the nature of order dated 02.06.2016 had been passed then too there would be no bar in examining Sri Surya Borah as defence witnesses. The qualifications attached to the examination of an accused as defence witness, under Section 315 CrPC, will not be applicable to Sri Surya Borah. On the other hand, assuming that no order in the nature of order dated 02.06.2016 had been passed then too there would be no bar in examining Sri Surya Borah as defence witnesses. The only condition would be that he could not have been examined on oath, and secondly, he could not have been examined as defence witness without a prayer from him in person. 17. It would be seen that in either circumstances the petitioner could not have possibly objected to the examination of Sri Surya Borah as defence witness in this case. 18. The only question which survives for consideration now is - whether there is any conflict of interest among the accused persons themselves and if so, can accused No. 1, 2, 3, 4 & 6 be denied an opportunity to adduce the evidence of Sri Surya Borah for the mere reason that the petitioner is likely to be prejudiced by his evidence? 19. In this context, assuming that the contention of the petitioner is upheld would it not be prejudicial to the accused No. 1, 2, 3, 4 & 6 if they are denied an opportunity to establish their defence. Infact, denial of opportunity to accused No. 1, 2, 3, 4 & 6 to adduce defence evidence of their choice would be denial of their fundamental right to fair trial. Prejudice, therefore, in the context of petitioner would also exist if he too is denied the right of cross examining the defence witness Sri Surya Borah, if the petitioner is of the belief that his evidence is of incriminating nature and consequentially detrimental to the interest of petitioner. 20. In Phipson on Evidence (Eleventh Edition, page 647) it is stated that a defendant may cross examine a co-defendant or any other witness who has given evidence against him and reply on such evidence, though there is no issue joined between them. 21. Again in Halsbury's Laws of England, Third edition Vol. Xv para 809), (5) it is stated that any party is entitled to cross examine any other party who gives evidence, or his witnesses; and no evidence affecting a party is admissible against that party unless the latter has had an opportunity of testing its truthfulness by cross examination. 22. 21. Again in Halsbury's Laws of England, Third edition Vol. Xv para 809), (5) it is stated that any party is entitled to cross examine any other party who gives evidence, or his witnesses; and no evidence affecting a party is admissible against that party unless the latter has had an opportunity of testing its truthfulness by cross examination. 22. It is not the case of the petitioner that the learned trial Court has denied him an opportunity to cross examine the defence witness Sri Surya Borah. That being the case, the apprehension of the petitioner that evidence of Sri Surya Borah would be detrimental to his defence cannot be upheld when he has not been denied a right of cross examination of Sri Surya Borah. 23. In the ultimate analysis this Criminal Revision is found to be devoid of merits and is accordingly dismissed. 24. The stay order granted earlier on 20.9.2017 is vacated.