SUNIT TYAGI Vs. STATE OF U P

JUDGEMENT

(1.) HEARD learned counsel for the applicants, Shri U. C. Yadav, learned counsel for opposite party No. 2 and learned Additional Government Advocate.

(2.) AN order dated 29. 8. 2007 passed by the learned Additional Chief Judicial Magistrate, court No. 2, Muzaffarnagar in Criminal Case No. 645/9 of 2007, Om Pal v. D. D. Bobra and others has been challenged by means of this application whereby the learned Magistrate has rejected the application of the applicant for being examined as a witness under Section 202, Cr. P. C. as the complainant gave him up.

(3.) THE reason for passing the said order mentioned by the learned Magistrate was that after an order was passed by the High court on 20. 4. 2007 in Application No. 5213 of 2007 setting aside the order of dismissing the complaint under Section 203, Cr. P. C. passed by the learned Magistrate and remanding matter to the learned Magistrate for reconsideration of the case on merit, in view of the High Court's observations that on the basis of the statement of the complainant recorded under Section 200, cr. P. C. that a prime facie offence appears to be made out against the accused. However, after the remand in pursuance of the said order, it appears that the predecessor magistrate of the present Additional Chief judicial Magistrate II Court No. 2 had passed the order dated 29. 8. 2007 allowing the complainant to produce certain witnesses under Section 202, Cr. P. C. The present learned Magistrate, however, observed that his predecessor Magistrate appeared to have wrongly granted the said permission, but as an order had already been passed by his predecessor Magistrate allowing the complainant to produce some witnesses under Section 202, Cr. P. C. he could not recall the said order in view of the bar prohibiting review of an earlier decision contained in Section 362, Cr. P. C. But so far as the applicant, who wanted to examine himself under Section 202, Cr. P. C. was concerned, the said permission could not be granted to him because the order of the High court dated 20. 4. 2007 did not require re-examination of the witnesses, but the matter was only remanded to the Lower Court for disposal of the application on merit in the light of the observations in the High court's order.