STATE Vs. BHULLAN

JUDGEMENT

(1.) THE State of U.P. has preferred this application in revision against the orders dt. 14 -3 -1972 and 30 -3 -1972, of Sri S.K. Srivastava, Sessions Judge, Mirzapur, in Sessions Trial No. 53 of 1971 - -State v. Bhullan - -rejecting Application Nos. 34 -B and 36 -B for examining Chandra Bhushan alias Brij Bhushan (hereinafter referred to as Chandra Bhushan) as a witness on behalf of the prosecution and Under Section 540 Code of Criminal Procedure respectively.

(2.) IT appears that Bhullan, accused opposite party, lodged a report at PS Chopan on 11 -10 -1970, at 9.05 O'clock in the morning alleging that on the night between 10/11th October, 1970, at about 4 O'clock in the morning while he was coming after easing himself he heard the cries of Jamuna Devi, his Malkin, and having reached there he saw in the light of the torch that Chandra Bhushan alias Brij Bhushan, S/O Ghanshyam, R/O Qasba Roberts Ganj, was assaulting Jamuna Devi with a Gandasa and that two other persons were catching hold of the hands of Jamuna Devi and one other person was standing near her with a gun in his hand. On an alarm being raised by him, the man holding the gun fired a shot at him. Dangar and Chhotaka, according to him, had seen the incident. On seeing the witnesses coming, the assailants including Bhullan made good their escape.

(3.) AT any rate another application was made on 30 -3 -1972, for summoning Chandra Bhushan Under Section 540 Code of Criminal Procedure, but this application too was rejected by the learned Sessions Judge only on the ground that he did not consider it necessary to summon the person concerned Under Section 540 Code of Criminal Procedure. To my mind, this view taken by the learned Sessions Judge also does not seem to be correct. Section 540 makes it clear that at any stage the Court could examine a witness and in the circumstances as narrated above, even if the learned Judge had rejected the earlier application of the prosecution he ought to have allowed the application Under Section 540 Code of Criminal Procedure and should have examined Chandra Bhushan as a Court witness.