BHURI Vs. STATE OF U P

JUDGEMENT

(1.) A. P. Sahi, J. The petitioner-Smt. Bhuri lodged a complaint under Section 156 (3), Cr. P. C. to the effect that the accused persons cheated her by obtaining documents in the name of getting a lease executed in her favour and instead obtained some loan in her name the recovery whereof was sought to be made from her. Having discovered this fraud practiced on her, she lodged the complaint on 21. 6:1997.

(2.) THE trial proceeded and during the trial, an Application was moved by the complainant after her examination-in-chief to summon one Sri Ashok Kumar, the village Pradhan, and the Branch Manager Sri N. N. Kapoor of the Punjab National Bank, on the allegation that they had also conspired in getting the fraudulent documents prepared. THE said application has been rejected on 1. 9. 2007 by the learned Magistrate on the ground that the petitioner has only gone through her examination-in-chief and additional evidence is yet to come, therefore, the said application was not liable to be entertained and was, accordingly, rejected. A revision was preferred by the petitioner which was disposed of with the observation that keeping in view the law laid down by the Apex Court in the case of Mohd. Shafi v. Mohd. Rafique, 2007 (58) ACC 254, the application can be entertained after the cross-examination of the witness is completed. Accordingly, the order of the trial Court was modified to the extent that such an application could be moved after the cross-examination is completed.

(3.) A perusal of the a foresaid provisions leaves no room for doubt that the Court has wide discretion in the matter and in case the Court is satisfied that the person, sought to be summoned, has committed any offence on the basis of the evidence already led, then the Court may proceed against him as if he was an accused when the Court took cognizance of the offence initially. However, the Section protects the rights of such a person by clearly stating that the proceeding in respect of such a person shall be commenced afresh and the witnesses shall be reheard. This clearly means that there would be a de novo trial for such a person and all the witnesses will have again to be proceeded with afresh and the entire procedure will have to be adopted. This would ensure the absence of any prejudice to such a person which stands assured by a de novo trial altogether.