MALLIKARJUN Vs. NINGANNA AND ANOTHER

JUDGEMENT

(1.) -This application under Sec. 482 Crimial P.C. has been filed by the applicant with the prayer to quash the part of joint order dated 28.7.2012 passed by learned lower court in S.T. No. 592 of 2007, State Vs. Munna and others, under Sections 363, 366, 368, 376, 34 I.P.C., P.S.- Dhoomanganj, District-Allahabad pending before the A.D.J. 23rd, Allahabad whereby the prayer to summon the Magistrate who had recorded the statement of the victim u/s 164 of Crimial P.C. as well as the prayer that the court should do the spot inspection, both have been rejected.

(2.) Submission of the counsel for the applicant is that during the course of statement given by the victim-girl, some topographical facts relating to geographical or topographical situation of the town Allahabad have been denied and it was in this connection that an application under Sec. 310 of Crimial P.C. was moved in the court below. But the court below has wrongly rejected the same. Further submission is that some contradictory statements were made before the Magistrate, who had recorded the statement of the alleged victim-girl under Sec. 164 of Crimial P.C. and for that purpose the accused-applicant wanted to examine the Magistrate in order to prove those contradictory statements. Submission is that as the prayer with regard to summoning the Magistrate has already been rejected by the trial court, the accused will be deprived of their intrinsic right to impeach the worth of the witnesses' testimony and the contradictions contained in the previous statement shall remain unproved and, therefore, it shall cause prejudice to him and shall also affect the fairness of the trial. It was also submitted by counsel for the applicant that the trial court had only allowed the prayer to summon two other witnesses in order to show previous marriage of the victim with the accused. The counsel has also tried to buttress his submission by placing reliance on a Full Bench decision given by this Court in <B>Sheo Raj Vs. State, AIR 1964 All 290</B> and has tried to show that summoning of Magistrate is necessary in order to prove the statement given by the victim u/s 164 Cr.P.C.

(3.) The impugned order indicates judicial application of mind and the facts and circumstances of the case have been carefully gone into and judicious decision has been arrived at by the trial court. So far as the application under Sec. 310 of Crimial P.C. is concerned, it is true that the courts have the power to examine the spot at any stage of inquiry or trial, if in its opinion, it is necessary to do so for the purpose of proper appreciation of evidence. But it does not mean to say that whenever an application to the same effect is moved on behalf of either side, the court shall be under compulsion to inspect the spot. It is for the court to adjudge the exigency of the spot inspection. In the considered view of the trial Court such an application was not needed in the light of the available record of the case and, therefore, this Court has also no reason to take a different view in the matter and meddle with the judicial discretion of the trial court. So far as the prayer with regard to summoning of the two witnesses of 'Nikah' are concerned, the same prayer has already been allowed and therefore, there is no need to go into that aspect of the matter. The only question alive for this Court to consider is the expediency or the need to summon the Magistrate, who had recorded the statement of the victim-girl under Sec. 164 of Crimial P.C. In this regard, it may be very relevant to mention that the trial court has primarily rejected the application seeking the summoning of the Magistrate on the ground that before recording the statement of the accused under Sec. 313 of Crimial P.C. a similar application seeking the summoning of the Magistrate was also made on behalf of the accused but the same was rejected by the court by a speaking order dated 18.3.2011. The trial court was of the view that because a similar application had already been rejected and therefore, there was no need to pass another order again and allow the same application.