Jitender Singh vs State Of U.P. And Another

1. Heard learned counsel for the applicant, learned counsel for the opposite party no.2 as well as learned AGA for the State.

2. The present application u/s 482 Cr.P.C. has been filed by the applicant with the prayer to quash the impugned order dated 10.04.2023 in S.T. No.254 of 2017, arising out of Case Crime No.498 of 2017, under Sections 302/34 IPC, Police Station Dokati, District Ballia.

3. Learned counsel for the applicant submits that an application under Sections 311 Cr.P.C. has been moved by the applicant for recalling/examining the witnesses, namely, Manoj Kumar Mishra and Sanjeet Kumar Yadav, who are injured witnesses/eye witnesses. However, they have already been discharged by the prosecution. The application has been rejected in casual and mechanical way without considering the real controversy involved in the case and demand of the just decision in the case. Further submission is that the impugned order is illegal and is liable to be set aside. Further submission is that an opportunity may be given to the applicant to examine the aforesaid witnesses.

4. On the other hand, learned AGA as well as learned counsel for the opposite party no.2 have opposed the prayer and submitted that the present application, which has been rejected by the court after hearing both the parties, which was moved by the applicant before his statement under Section 313 Cr.P.C. was recorded. Further submission is that the accused has no occasion nor right to get the witnesses to be examined, who have been discharged by the court on the request of prosecution.

5. I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record.

6. In view of the submission and contention made by the learned counsel for the parties, it is apparent that the application has been moved by the accused for recalling the witnesses, who have been discharged at the request of the prosecution even before his statement recorded under Section 313 Cr.P.C.. The accused has right to examine the witnesses but only at the stage of the defence evidence.

7. Section 311 in The Code Of Criminal Procedure, 1973, which reads as under:-

"311. Power to summon material witness, or examine person present. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or. recall and re- examine any person already examined; and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it to be essential to the just decision of the case."

8. Having regard to the facts and circumstances of the case and having considered the rival submission made by the learned counsel for the parties, there appears no illegality and perversity in the impugned order. Prayer for setting aside the same is refused. However, in case, the Presiding Officer deems it necessary to examine the aforesaid witnesses essential to the just decision of the case, he may summon at the appropriate stage.

9. With the aforesaid observations, the present application u/s 482 Cr.P.C. is disposed off.

Order Date :- 21.8.2023

Sanjeet