DILSHAD Vs. STATE OF U P

JUDGEMENT

(1.) R. K. Rastogi, J. This is an application under Section 482, Cr. P. C. for quashing the order dated 30-4-2005 passed by Addl. District and Sessions Judge (Special), Baghpat in S. T. No. 352 of 2001, State v. Smt. Haseena and Ors. , under Section 307, I. P. C. Police Station Baraut District.

(2.) THE facts relevant for disposal of this application are that the aforesaid Sessions Trial is pending against the accused applicant before the Court of Addl. District and Sessions Judge (Spl.) Baghpat and the prosecution evidence is going on. On 30-4- 2007 the prosecution produced Dr. V. B. Bhatnagar as P. W. 8. His name was not mentioned in the charge-sheet as a witness. Hence an objection was raised from the side of the accused applicant that he could not be examined without seeking permission of the Court. THEn the A. D. G. C. (Crl) moved an application for permission to examine him. As per endorsement made by the Counsel for the accused applicant on the margin of this application he sought time to file written objection. However, learned Addl. Sessions Judge allowed that application on that very day without providing any such opportunity to the accused applicant. Aggrieved with that order, the accused applicant filed this application under Section 482, Cr. P. C.

(3.) IT is true that the name of Dr. V. B. Bhatnagar was not mentioned in the charge-sheet and so it was essential for the prosecution to seek permission from the Court before examining him. But, he was produced without any such prior permission and during the course of his examination in chief, the above objection regarding permission was raised. Then an application for granting permission was moved mentioning the necessity to examine him. The witness who had come from outstation was present in the Court and his examination-in-chief had been partly recorded. Under these circumstances, the Presiding Officer of the Court did not commit any illegality by granting permission that very day. IT is to be seen that it was for the prosecution to decide as to whether this witness was to be produced by them for proving a particular fact or not and if in the present case the prosecution wanted to prove the medical documents by examining Dr. V. B. Bhatnagar the main objection which the accused applicant could take was that he had not received a copy of his statement and so a copy of the statement should be furnished to him to make preparation for his cross-examination but in the present case since he was not named as witness and his statement under Section 161, Cr. P. C. had not been recorded, it was not possible to supply any copy of the earlier statement, and the copy could be supplied only after recording his examination in chief to enable the learned Counsel for the applicant to prepare for cross- examination of the witness. In this way, no prejudice has been caused to the accused by granting permission for recording Dr. V. B. Bhatnagar's examination. The prosecution shall now furnish a copy of that statement to the learned Counsel for the accused to enable him to prepare for cross-examination of the said witness and thereafter a date shall be fixed by the trial Court of recording cross-examination of Dr. V. B. Bhatnagar and on that date the learned Counsel for the accused applicant shall cross-examine him.