- (1.) PALOK Basu, J. This application under Section 482, Cr. P. C. raises a short but interesting question. Can the witness for the prosecution, who according to the allegations was the scribe of the F. I. R. , can be examined by the prosecution notwithstanding the earlier order of the trial Judge whereby he was discharged ?
(2.) SESSIONS Trial No. 258/1984, State v. Parmanand is pending before the SESSIONS Judge, Deoria, for trial under Section 302, IPC. Vyas Misra was allegedly shown in the calendar as a witness as he was the scribe of the F. I. R. on 20-8-86 an application was moved by the D. G. C. Criminal praying that witness Vyas Misra be discharged since he had filed an affidavit, as a result of which his testimony was no more relevant. The SESSIONS Judge allowed the said application on the same day and specifically directed that Vyas Misra the witness stood discharged. On 24-1-89 a fresh application was moved by the prosecution during the trial that the said witness, alongwith some others, be summoned. The learned SESSIONS Judge has directed summoning Vyas Misra as a witness after allowing the said application of the prosecution. The accus ed filed an objection before the trial Judge on 16-8-1989 to the aforesaid order of the trial Judge summoning Vyas Misra on the ground that the said witness stood discharged, he had filed an affidavit denying the prosecution allegation, he cannot be summoned again if necessary, powers under Section 311, Cr. P. C. can alone be invoked. The learned SESSIONS Judge has rejected the said objec tion of the accused on 11-9-1989 against which order this application under Section 482, Cr. P. C. has been filed invoking the inherent powers of this Court so as to quash the order of the trial Judge dated 11-9-1989. Sri Siddhartha Shukla, learned Counsel for the applicant, has been heard at length in support of this application. For the reasons appearing herein after this application must be dismissed Section 231, Cr. P. C. deals with the de tails regarding "evidence for prosecution". It says that the Judge shall proceed to take all such evidence as may be produced in support of the prosecution. The Judge may, in his discretion permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or re-call any witness for further cross-examination. This section corresponds to Sec. 286 of the Code of Criminal Procedure, 1898. Sub-section (2) of Sec. 286, Cr. P. C. , 1898 said that the prosecutor shall then examine his witness. ' Section 231, Cr. P. C. however, is positive from the Court's point of view which was not the case in the old Cr. P. C. and it reads 'the Judge shall proceed to take all such evidence as may be produced in support of the prosecution. The bare reading of the two sections referred to indicates the clear intention of the Legislature that the choice of examining witness in support of prosecution lies with the prosecutor. The Judge shall have to proceed to take that evidence. The aforesaid discussion shows the absolute choice of the prosecutor not to examine a witness at a particular stage on such an application being made claiming him to be discharged. But the order of discharging that witness must be held to operate only till that stage. If later on the prosecution requires the examination of that witness, there is no power with the court to stand in the way while the prosecution is under no obligation to examine each and every witness, at the same time, it must examine the material witnesses essential in unfolding the prosecution story. If it adopts a device of keeping back an eye witness only because its evidence may go against it, the prosecution runs the risk of being reprimanded and withholding of a witness may become subject of oriticism. However, the selection of the witnesses must be fair and honest and no dubious method should be adopted to avoid inconvenient witnesses.
(3.) BUT the only fact that a witness who was thought proper at an earlier occasion and as such was included in the list of witnesses, has been dis charged on an application of the prosecution, does not leave any discretion with trial Judge to refuse a prayer of the prosecution at a later stage in the trial to examine that witness. Holding otherwise is likely to frustrate the intention of the Legislature through Section 231, Cr. P. C. and may result in great in justice. To a large extent, this view may be fortified by decision of the Hon. Supreme Court reported in Masalati v. State of U. P. , AIR 1965 SC page 202. Sri Siddhartha Shukla argued that Section 311, Cr. P. C. was the only Section which may be taken recourse to in the given circumstances. For the reasons stated above this argument does not arise in the instant case. The last argument advanced was that the accused's right will be prejudiced if the wit ness Vyas Misra is permitted to be examined as a prosecution witness. This argument is misconceived. There is no clash of rights of interest of the pro secution and of the defence at the stage of deciding to examine a witness because the accused can have no grivance on the choice of the prosecution. In a given case, the accused may talk loudly about non-examination of a witness and thereby attempt criticising the prosecution but can certainly have no objec tion to the examination of a witness thought relevant. The question of any prejudice to the accused, therefore, does not arise.;