Court No. - 72
Case :- APPLICATION U/S 482 No. - 15849 of 2019 Applicant :- Bhoorey And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- R.P.S. Chauhan Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri R.P.S. Chauhan, learned counsel for the applicants and learned AGA for the State.
2. The present 482 Cr.P.C. application has been filed to quash the impugned order dated 15.09.2018 passed by the Session Judge, Sambhal at Chandausi in S.T. No.26/2018 arising out of Case Crime No. 408/2017, under Sections- 147, 148, 149, 302, 307, I.P.C. (State Vs. Tillu & Others), Police Station-Gunnaur, District- Sambhal, pending in the court of learned Session Judge, Shambhal.
3. Learned counsel for the applicants submits that the impugned order suffers from patent error which renders it perverse, inasmuch as the Application Paper No.39-B had not been filed by the prosecution, but by the informant. A certified copy of the Application Paper No.39-B has been annexed as Annexure No. 5 to the present application. It clearly discloses that that application had been filed by Kale son of Natthu Singh Yadav, who is the informant of the case. The ADGC (Criminal) had only signed under the word "Identified".
4. On fact, it has been submitted, applicant nos.1 and 2 are the father-in- law and brother-in-law of the deceased Nekse son of Lakhpat, while the informant is a distant relative of the deceased.
5. In any case, since the applicants were named eye witness, both in the FIR as also in the charge sheet, the procedure in law would have to be followed and they ought to have been allowed to testify, and only in the event of their turning hostile, that declaration may have been made by the learned court below, at the appropriate stage of the trial. However, the applicants could not have been discharged on an unfounded and imaginary presumption raised by the informant, of the applicants having turned hostile. In sum and substance, it has been submitted that the witness discharge application has been allowed prematurely, without any reason.
6. The learned A.G.A. on the other hand submits, it is the privilege of the prosecution to lead such evidence as it may choose, to prove the charges. No witness has any legal right to be called by the prosecution, merely because he may be a witness named in the charge-sheet.
7. Having heard learned counsel for the parties and having perused the record, first, it cannot be disputed that the application - Paper No.39-B had not been filed by the prosecution but by the informant. At this stage of the proceedings, the conductor of trial is the prosecution. Though it may have been open for the prosecution to have filed such an application but it was never for the informant to interject or hijack the trial proceedings in the manner it has been done. Sadly, the learned court below has also not taken note of this fact and erroneously treated the application to be one filed by the prosecution.
8. Second, the observations made by the learned court - if the applicants so want to testify they may lead evidence in defence at the appropriate stage is plainly premature and out of place, inasmuch as at present it is undisputed that the applicants are named witness of fact. It has to be presumed they would depose in favour of the prosecution case. Only if they were to testify as prosecution witness and be declared hostile that other eventualities may arise. However, as of now, no presumption (as has been claimed by the informant) and no such fact or circumstance has been taken note of in the impugned order. The Trial Court could not act as a mute spectator to the drama being enacted before it.
9. At present, it appears the informant approached the learned Trial Court on an unspecified and unsustantiated apprehension, not to record the testimony of the applicants who are the father-in-law and brother-in-law of the deceased and it (Trial Court) has obliged, without proper consideration of any relevant aspect of the case.
10. In view of the above, no useful purpose would be served in keeping the present application pending any further or calling for a counter affidavit, at this stage. The order dated 15.09.2018 is set aside. The learned Trial Court is directed to pass a fresh order, strictly in accordance with law, keeping in mind the interest of justice. The above exercise may be completed, as expeditiously as possible, preferably within a period of one month from the date of production of a certified copy of this order, which the applicant shall file within next two weeks.
11. With the above observations, the application is disposed of.
Order Date :- 25.4.2019 S.Chaurasia