SUKKHAN Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) Taken up for final disposal. No one appears on behalf of the applicants. But I have heard the learned counsel for the State.

(2.) It appears that Irfan Au who was the first-informant in this case, was examined in Court on 23/7/1986. Thereafter further evidence continued and in the meanwhile and affidavit was placed on the record of the case purporting to have been sworn by the same Irfan Ali on 12/9/1986 through which he denied having seen the occurrence and hence his status as that of an eye-witness. In the light of this affidavit, an application was moved on behalf of the accused persons before the learned VI Additional Session I Judge. Bulandshahar on 6/5/1987 requesting the re-summoning of Irfan Ali for further cross-examination and confrontation with this affidavit under the provisions of section 311 of the Code of Criminal Procedure. By II rather too short order consisting of a single word Rejected, the learned VI Additional Sessions Judge disposed of this petition on 12.5.1987 and this has given rise to the present revision.

(3.) The Sessions Trial No. 555 of 1985 (State v. Sukkhan and others) was very much in progress and now it has been stayed because of the pendency of this revision. I feel that the order passed by the learned VI Additional Sessions Judge, Bulandshahar besides being perfunctory and non- speaking order is actually no order in the eye of law. Even on merits this order could not be treated to be of any value. If the fact was brought to the notice of the learned Court below that one of the main witnesses of this case namely Irfan Ali son of Mohd. Farahim had filed an affidavit in the Court on 12/9/1986 saying what he had not seen the occurrence and thus the affidavit was clearly in contradiction with his earlier stand taken on 23/7/1986 when he appeared in Court and made the statement on oath and tried to prove the prosecution case; it was only very natural and proper that he should have been summoned afresh under section 311 of the Code of Criminal Procedure and confronted with this affidavit and liven an opportunity to explain his behavior. This was more so necessary in order to remove any prejudice that might be caused to the accused persons in view of his earlier testimony on 23/7/1986 and his subsequent affidavit dated 12/9/1986.