PARMANAND MISHRA Vs. STATE OF U P

JUDGEMENT

(1.) PALOK Basu, J. This application under Section 482, Cr. P. C. raises a short but interesting question. Can the witness for the prosecution, who according to the allegations was the scribe of the F. I. R. , can be examined by the prosecution notwithstanding the earlier order of the trial Judge whereby he was discharged ?

(2.) SESSIONS Trial No. 258/1984, State v. Parmanand is pending before the SESSIONS Judge, Deoria, for trial under Section 302, IPC. Vyas Misra was allegedly shown in the calendar as a witness as he was the scribe of the F. I. R. on 20-8-86 an application was moved by the D. G. C. Criminal praying that witness Vyas Misra be discharged since he had filed an affidavit, as a result of which his testimony was no more relevant. The SESSIONS Judge allowed the said application on the same day and specifically directed that Vyas Misra the witness stood discharged. On 24-1-89 a fresh application was moved by the prosecution during the trial that the said witness, alongwith some others, be summoned. The learned SESSIONS Judge has directed summoning Vyas Misra as a witness after allowing the said application of the prosecution. The accus ed filed an objection before the trial Judge on 16-8-1989 to the aforesaid order of the trial Judge summoning Vyas Misra on the ground that the said witness stood discharged, he had filed an affidavit denying the prosecution allegation, he cannot be summoned again if necessary, powers under Section 311, Cr. P. C. can alone be invoked. The learned SESSIONS Judge has rejected the said objec tion of the accused on 11-9-1989 against which order this application under Section 482, Cr. P. C. has been filed invoking the inherent powers of this Court so as to quash the order of the trial Judge dated 11-9-1989.

(3.) BUT the only fact that a witness who was thought proper at an earlier occasion and as such was included in the list of witnesses, has been dis charged on an application of the prosecution, does not leave any discretion with trial Judge to refuse a prayer of the prosecution at a later stage in the trial to examine that witness. Holding otherwise is likely to frustrate the intention of the Legislature through Section 231, Cr. P. C. and may result in great in justice. To a large extent, this view may be fortified by decision of the Hon. Supreme Court reported in Masalati v. State of U. P. , AIR 1965 SC page 202.