Prem Shanker Asopa, J. - (1.)BY this writ petition, the petitioner has challenged the charge sheet dt. 30.05.2008 issued for misconduct of declaring him hostile by the A.C.D. Court while recording his statement on 20.11.2002.
(2.)BRIEFLY stated, facts of the case are that statement of the petitioner under Section 161 Cr.P.C. was recorded in a trap case by the police as an independent witness on 20.11.2002. Subsequently, he was called as prosecution witness by the A.C.D. Court and his evidence was recorded on 09.03.2007. At the request of the Public Prosecutor, the petitioner was declared hostile witness and permission to cross -examine was granted to the Public Prosecutor. Treating the contradiction in the two aforesaid statements - (i) under Section 161 Cr.P.C. and (ii) Under Section 164 Cr.P.C. the charge sheet was served upon the petitioner on 30.05.2008.
It is stated in the writ petition that whether a witness is trustworthy or not, has to be decided by the Court and not by the Government and unless the Court gives a clear finding of the witness being untrustworthy, no misconduct is made out. Here, in the instant case, the proceedings are still pending, therefore, there is no justification to issue the charge sheet.

(3.)STATE of Rajasthan, in its reply, has stated that the petitioner has made incorrect statement before the Court, therefore, charge sheet has rightly been issued.