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BABU versus STATE OF U.P. & ANOTHER

High Court of Judicature at Allahabad

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Babu v. State Of U.P. & Another - APPLICATION U/s 482 No. 329 of 2006 [2006] RD-AH 765 (12 January 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Hon'ble M. K. Mittal, J.

Heard Sri I. M. Khan, learned counsel for the applicant, learned A.G.A. and perused the record.

Application under Section 482 Cr.P.C. has been filed to quash the order dated 20.12.2005 passed by District and Sessions Judge, Bijnor in S. T. No. 640 of 2005 State Vs. Babu and others under Section 302 IPC whereby learned Judge allowed the application filed on behalf of the prosecution under Section 311 Cr.P.C. and directed to summon Smt. Mahsar Jahan wife of the deceased as Court witness.   Order sheet also shows that the examination in chief has been recorded same day.

Brief facts of the case are that the First Information Report in the matter was lodged by Allahdiya and in that report the wife of the deceased was not mentioned as a witness. The investigating Officer also did not examine her during investigation. Smt. Mehsar Jahan moved an application under Section 311 Cr.P.C. alleging that her husband was attacked by the accused persons on 31.5.2002 in her presence as well as in the presence of her son and that when she came to know that Allahdiya had intentionally omitted their name in the F.I.R., she gave an affidavit on 30.6.2005 to superintendent of Police. Her son also gave an affidavit. Learned Judge by the impugned order finding that the statement of the applicant Smt. Mehsar Jahan was important in the interest of justice, allowed the application.

Contention of the learned counsel for the applicant is that the learned Trial Court has ignored the fact that Smt. Mehsar Jahan was not named as witness  in the F.I.R. and her statement was also not recorded by the Investigating Officer and that the application was not filed by the state Counsel. He has also contended that in the circumstances she cannot be treated as Court witness and the learned trial Court has erred in summoning her to fill up the lacuna in the prosecution case.

Learned A.G.A. has contended that Smt. Mehsar Jahan is the wife of the deceased and she claims to be an eye witness and had also given affidavit in this connection to the Superintendent of Police but the Investigating Officer did not interrogate her. In the circumstances, he has contended that learned Trial Court has rightly allowed her application to summon her as Court witness.

Considering the facts and circumstances, the learned Trial court has not committed any illegality in summoning Smt. Mehsar Jahan wife of the deceased as Court witness and it cannot be said that the learned Trial Court has allowed  the application to fill up the lacuna of the prosecution case. Although, other four witnesses of fact have already been examined in the case, the fact whether Smt. Mehsar Jahan witnessed the incident or not can be tested after he examination. She being eye witness as claimed her testimony is important to bring the correct facts on the record.

In the circumstances, this application is devoid of merits and is liable to be dismissed and is hereby dismissed.

Dated: 12.1.2006

RKS/329/06


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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