Court No. - 49
Case :- APPLICATION U/S 482 No. - 32096 of 2018 Applicant :- Sri Brijesh Kumar Chaudhary Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Siddharth Niranjan Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
1. Heard learned counsel for the applicant and learned AGA for the State.
2. The present application is directed against the order dated 30.07.2018 passed by the learned A.D.J./S.J. (F.T.C.)-I, Jalaun at Orai in Sessions Trial No. 23/2016, arising out of Case Crime No. 571/2015 (State Vs. Brijesh Kumar Chaudhary & another), under Section 302, 201, 506 of I.P.C., Police Station Rampura, District Jalaun, pending in the court of A.D.J./S.J. (F.T.C.)-I, Jalaun at Orai, by which the learned court below has rejected the application filed by the applicant referable to Section 233 Cr.P.C.
3. By that application, the applicant had sought summoning of Pradeep Kumar as defence witness. Admittedly, the said Pradeep Kumar had been named in the charge-sheet as a prosecution witness. However, the prosecution sought his discharge which was allowed. Consequently, the said Pradeep Kumar has not entered the witness box. Therefore, earlier, the applicant filed an application under Section 311 Cr.P.C. to summon the said Pradeep Kumar. It was rejected by the order dated 17.01.2017 passed by the learned trial court. The said order was also affirmed by this Court in application u/s 482 no. 2953 of 2018.
4. Subsequently, upon the prosecution evidence being complete and the stage for defence witness being set, the applicant filed the present application to summon the said Pradeep Kumar as a defence witness.
5. The learned court below has again rejected that application on the reasoning, since similar application filed by the applicant (u/s 311 Cr.P.C) had been rejected by that court on 17.01.2017, there did not remain any justification to allow the present application.
6. Learned counsel for the applicant submits though by the earlier application, the applicant had sought summoning of the same witness Pradeep Kumar, however, that application had been filed under Section 311 Cr.P.C. seeking summoning of a prosecution witness. At present, the applicant had not re-agitated that right. He now sought to enforce a different right, under section 233 Cr.P.C., albeit for the same end purpose. That right/application ought to have been examined on its own merits irrespective of the fate of the earlier application filed by the applicant under Section 311 Cr.P.C.
7. Learned AGA on the other hand submits that the person being summoned being one and the same, since the earlier application had been rejected to the summon the same person, the learned court below has not erred in rejecting the present application.
8. Having considered the arguments advanced by the learned counsel for the parties, it appears that the learned court below has clearly erred in rejecting the application filed by the applicant inasmuch as though the earlier application (filed under Section 311 Cr.P.C.) may have been misconceived, and may therefore, have been rightly rejected, at present, application had to be decided on its own merits, it having been filed under Section 233 Cr.P.C.
9. The right being claimed under section 233 Cr.P.C. is substantially different and independent of the right that may be claimed under section 311 Cr.P.C. Earlier, the applicant/defence had filed an application under the latter section and sought production of a witness cited as a prosecution witness, that too at the stage of prosecution evidence. That was rejected as it was not for the applicant to choose any person to be brought as a witness by the prosecution and also, the learned trial court also did not consider it necessary to summon that person as a court witness. At present the stage in the trial is of defence evidence. At this stage, the applicant/defence is within its rights to examine such person as it may choose. Neither the prosecution nor the court may bar that choice for the reason that such a person had been named as a charge-sheet witness (though not examined), nor can that right be denied to the applicant/defence because its earlier application filed under section 311 Cr.P.C. filed with respect to that very witness had been rejected. Such application being for an independent right claimed by the defence, it had to be dealt with on its own merits.
10. Consequently, the impugned order dated 30.07.2018 cannot be sustained and it is hereby set-aside and the matter is remitted to the learned court below to decide the application a fresh on its own merits without being influenced by the earlier rejection of the application filed by the applicant under Section 311 Cr.P.C. seeking summoning of the said Pradeep Kumar at the stage of prosecution evidence.
11. With the aforesaid observation, the present application is disposed of.
Order Date :- 18.9.2018 Prakhar