Court No. - 67
Case :- APPLICATION U/S 482 No. - 3368 of 2019 Applicant :- Mohd. Miyazan Opposite Party :- State Of U.P. And 6 Others Counsel for Applicant :- Jai Shanker Malviya,Vimlendu Tripathi Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard Sri Vimlendu Tripathi, learned counsel for the applicant, learned AGA and perused the record.
By means of the instant application filed under section 482 Cr.P.C., the applicant is praying to set aside the 29.11.2018 whereby application filed under section 78-B on behalf of the applicant has been rejected and he has been summoned under section 313 Cr.P.C. for recording of his statement in S.T. No. 504 of 1998 (State v. Aslam and others) arising out of Case Crime No. 102 of 1996, under sections 5 of the Explosive Act, 147 and 307 IPC, P.S. Bhojpur, District Moradabad pending in the court of the VI- Additional Session Judge, Moradabad.
It is submitted by the learned counsel for the applicant that the incident took place way back in the year 1996 and the accused persons approached this Court and has succeeded in obtaining an ex-parte interim order in 1998, which lasted upto 2005. Thereafter number of legal formalities in which ten good years were consumed. It is next submitted that the applicant, who is the son of informant (since dead) moved an appliction on 29.11.2018 to summon Dr. D. Bhatnagar, who extended him medical assistance to him at Safdarganj Hospital, New Delhi and Dr. SC Taneja, Assistant Director, Forsenic Science Laboratory, Agra to lead evidence in the case. During advancement of arguments, learned counsel for applicant himself has given up his prayer so far as Dr. SC Taneja is concerned. But so far as Dr. Bhatnagar is concerned, it is argued by the learned counsel that his presence is absolute and essential in order to prove those medical prescriptions, which are under his hand and seal.
To buttress his contention, learned counsel has relied upon the provision envisaged under section 296 Cr.P.C., which is being extracted herein below, :
"Section 296 Code of Criminal Procedure Evidence of formal character on affidavit
1. The evidence of any person whose evidence is of a formal character may be given by affidavit and may, subject to all just exceptions, be read in evidence in any inquiry, trial or other proceeding under this Code.
2. The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any such person as to the facts contained in his affidavit."
Therefore, if any such application/affidavit with regard to summoning of the aforesaid doctor is moved by the applicant before the trial court, it is open for the court concerned, keeping in view the aforesaid provision under section 296 Cr.P.C., to pass a well reasoned and speaking order, within a period of four weeks from the date of production of a certified copy of this order.
With the aforesaid direction, the application filed under section 482 Cr.P.C., is finally disposed of.
Order Date :- 25.1.2019 shailesh