KESHAV SINGH Vs. STATE OF UP

JUDGEMENT

(1.) V. D. Chaturvedi, J. Heard learned Counsel for the revisionist, learned A. G. A. for the State and perused the material on record.

(2.) LEARNED Counsel for the revisionist contends that witness Bishambherhas a shop near the place of occurrence and his statement was recorded by the Investigating Officer and the Investigating Officer has placed reliance upon the statement of Bishambher but the prosecution did not produce the witness Bishambher as prosecution witness. Thereafter revisionist moved an application under Section 311, Cr. P. C. for examining Bishambher as Court witness which was rejected by the learned Trial Court by order dated 23-1-2008. The learned Counsel for the revisionist stated that rejection of an application for examining the important witness was erroneous. He also contends that the evidence of Bishambher. was essential for the just decision of the case and that the learned Trial Court was bound to examine him as Court witness. 3 LEARNED Counsel for the revisionist has placed reliance upon the judgments rendered in lddarv. Aabida, 2007 (59) ACC 517; Rama paswan and others v. state of jharkhand, 2007 (59) ACC 356; zahira habibullah sheikh v. state of gujrat, 2005 (supp) ACC 386 (SC); chhotey v. state of U. P. and another, 2006 (1) All JIC 88 and baddan and others v. state of U. P. and another, 2004 (5) ACC 731. 4. It is significant to look here the stage of the Trial impugned order reveals that the application was moved before the stage of Section 313 (1) (b), Cr. P. C. meaning thereby that the opportunity of the accused petitioner to produce his defence witness was still to come. 5. There are three types of witnesses viz. witness produced by the prosecu tion witness produced by the accused in defence and the witness examined by the Court as Court witness. Section 311, Cr. P. C. provides that the Court may examine any witness at any time in the circumstances given therein. The Court may exercise this power suo-moto and also on the application of either party. If the opportunity of prosecution or the defence to produce its witness is over and thereafter the prosecution or the defence finds that the examination of a witness was essential for just decision of a case but since he has lost his opportunity it is in-that event that it may make request to the Court under Section 311, Cr. P. C. 6. In the case in hand, revisionist's opportunity's did not start yet he has moved an application under Section 311, Cr. P. C. LEARNED Couns'el for the revi sionist wants that the witness relied upon by him be exatnined in Court not as defence witness but as Court witness. This is not permissible. The revisionist has an opportunity to produce Bishambher as his witness, after the examination of the accused persons under Section 313 (1) (b), Cr. P. C. 7. In view of what has been discussed above, I find no illegality in the im pugned order which is based on reason. Moreover the impugned order is-an interlocutory order, revision against which is not maintainable. The revision is hereby dismissed in-limine without issuing rule nisi. .