- (1.) B. K. Sharma, J. Heard the learned counsel for the revisionist and the learned counsel for the opposite parties 3 to 8 as well as the learned A. G. A.
(2.) THE facts leading to this revision are that on 27-10-1991 an occurrence took-place in respect of which an F. I. R. was lodged by Rakmuddin against the present accused opposite parties 3 to 8 at Police Station Kotwali pehat, district Saharanpur on which basis a Chik report was prepared and case Crime No. 304 under Sections 147/148/149/302, I. P. C. was registered. In this F. I. R. the informant had stated that his brother and others came at the spot and saw the occurrence. THE present revisionist Gaffur is real brother of the said informant. THE deceased in the case was Mugluddin, who was the father of informant Rakmuddin and of Gaffur, the present revisionist. After investigation, a charge sheet was submitted against the present accused opposite parties No. 3 to 8, in the Court of Magistrate concerned. THEreafter, the Magistrate committed the case to the Court of Sessions and after committal, the case became Sessions Trial No. 343 of 1996 under Sections 148, 302/149, I. P. C. The present revisionist Gaffur was cited as witness No. 5 in the charge sheet submitted by the Investigating Officer in this case. It appears that at the trial, the informant Rakmuddin was examined as P. W. 1. He narrated the prosecution story in his examination-in-chief but when his cross-examination was being made, he was declared hostile by the learned A. D. G. (Crl.) and was cross-examined. Another prosecution witness Riyasat (P. W. 2) also learned hostile and at that stage, the rest eye-witnesses of facts, namely Saddhu and Gaffur present revisionist were discharged on 5-3-1999 on the application of the same hostile in formant Rakmuddun which was submitted before the learned Additional Sessions Judge, Saharanpur by the learned A. D. G. C. (Crl. ). On the same day, the present revisionist Gaffur moved an application before the Additional Sessions Judge for recording his evidence at the trial pointing out that he is an eye-witness of the murder and in the first information, he has also been shown as an eye- witness and his statement under Section 161, Cr. PC. has also been recorded by the Inves tigating Officer in the case diary and in that statement he had given eye-witness ac count of the occurrence; that the inform ant of the case Rakmuddin conspired with the accused persons of the case and so instead of stating the truth, has turned hostile and had given false application before the Additional Sessions Judge and offering to give an eye-witness account of the occurrence in Court and praying that his statement be recorded in the case on oath. There was also a prayer to reject the discharge application given be Rakmud din before the Court. The learned Addi tional Sessions Judge has first passed or ders allowing the application for discharge moved by the informant Rakmuddin and submitted by A. D. G. G. (Crl.) by him and discharged the witnesses Saddhu and Gaf fur, (who is the present revisionist) and after this order, he had disposed of the application of the present revisionist the same day observing that Gaffur, present revisionist has no locus standi) to move the application and so his application is not maintainable. The learned Addl. Sessions Judge has also observed in his order that the evidence of the prosecution has been closed and that all the witnesses of fact have become hostile. He has also observed that there is a document on the file in which Rakmuddin and one Fakruddin have staled that somehow or other Rakmuddin's father Mugluddin got in jured. He also observed in the order that it appears to me that Gaffur had moved this application with ulterior motive and has got no locus standi ). With these observa tions, he rejected the application of the present- revisionist Gaffor for recording his statement. On the next day, i. e. ') 6-3-1999, he recorded the statements of ac cused persons under Section 313, Cr. P. C. and then after hearing the arguments of the learned counsel for the parties in the session trial handed down the judgment of acquittal of the accused-persons. Now, in this revision, a preliminary objection has been raised by the learned counsel for the accused opposite parties 3 to 8 that the present-revisionist Gaffor has no locus standi to prefer this revision. The learned counsel for the revisionist has challenged this claim of the defence and contended that the present revisionist, who was not only an eye-witness of the occurrence but also a son of the deceased, was a person aggrieved by the order of acquittal of the accused-persons in the case and so he had enough locus standi to prefer this revision. Section 397, Cr. P. C provides that the High Court may call for and examine the record of any proceeding before any inferior Criminal Court situate within its local jurisdiction for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceedings of such inferior Court. Thus, if a clear illegality and material irregularity comes in the notice of the High Court, it might even suo moto invoke its jurisdiction to correct such mistake. The matter of locus standi came up before the Apex Court in the case of Kishan Swaroop v. Govt of NCT of Delhi reported in 1998 SCC (Cri), 1587,1998jic 1120. The Apex Court in para 4 of its judgment had observed as follows:- "in dealing with the revision powers of the High Court vis-a-vis the right of a private party to move in revision-against an order of acquittal passed in a case instituted upon a police report, this Court observed in Chinnaswamy Reddy v. State of A. P. (AIR 1962 SC 1788) (on which judgment the High Court relied) as under:- "it is true that it is open to a High Court in revision to set aside 3n order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal; but this jurisdiction should in our opinion be exercised by the High Court only in exceptional cases, when there is some glaring defect in the proce dure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. " So in exceptional cases where there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice, the High Court could entertain such revision and correct the illegality. Therefore, in the cir cumstances of the present case, it cannot be said that the revisionist had no locus standi. He was certainly a person aggrieved in two ways- being an eye-witness of the occurrence and son of the deceased. The order passed by the learned Additional Sessions Judge rejecting his application for taking his evidence in this case as an eye witness of occurrence not only unjust but illegal. When the complainant himself turned hostile in the case, then the learned A. D. G. C. (Crl.) ought not to have sub mitted the application of such a hostile informant of the case to the learned Addi tional Sessions Judge for discharge of the remaining witnesses. The Additional Ses sions Judge also ought to have examined the witnesses mentioned in the discharge application who were the eye-witnesses of the occurrence in the charge sheet, under Section 311, Cr. P. C and then decide the case. The reasoning given by the Addition al Sessions Judge while rejecting the ap plication of the present revisionist cannot be sustained. An eye-witness could cer tainly approach the trial Court for record ing his evidence on oath when the trial was still in progress, particularly when the in formant of the case had turned hostile and was moving or had moved the Court for discharging the remaining eye-witnesses. Even if the learned Additional Sessions Judge has closed the prosecution evidence and had passed some order for recording the statement of the accused under Section 313, Cr. P. C. when the application of the eye-witness was moved, he could still legal ly invoke his jurisdiction to examine the material witnesses in the case under Section 311, Cr. P. C The learned Additional Sessions Judge was not at all justified in taking the view that the application has been moved with ulterior motive by the present revisionist. It was the bounden duty of the learned Additional Sessions Judge to examine all material witnesses relating to the case and even if the prosecu tion did not want to examine the revisionist as a prosecution witness, in all propriety he was required to examine this witness under Section 311, Cr. P. C. to ar rive at the truth in this case. The fact that the informant himself had turned hostile and other witnesses of fact have also turned hostile could not be a justification for rejecting the application of this witness of the occurrence as having been moved with ulterior motive. As a matter of fact when the informant had himself turned hostile in the case of murder relating to his own father, the learned Additional Ses sions Judge had all the more justification to examine this witness when he come forward to give his evidence at the trial.
(3.) THE learned counsel for the ac cused opposite parties 3 to 8 has not been able to support the order passed by the learned Additional Sessions Judge reject ing the said application on any legal ground. He has, of course pointed out that this revision has been preferred against only the final judgment passed by the learned Additional Sessions Judge and that no revision has been preferred against the order dated 5-3-1999 passed by the learned Additional Sessions Judge reject ing his application for recording his evidence. However, when the learned Addl. Sessions Judge had finally decided the Sessions trial itself after rejecting the said application of the present-revisionist, no useful purpose could be served by preferring revision against that order. THE judgment of acquittal passed by the learned Additional Sessions Judge gets vitiated in law because of this material irregularity committed by him during the trial and so his judgment of acquittal could be successfully assailed before the Court on the ground that he had sought to give material evidence available at the trial against the accused-persons but the same was illegally refused by the trial Judge. The learned counsel for the ac cused opposite parties 2 to 8 has claimed that there was a cross case and a revision is pending in respect of the judgment in that case also and that this revision, therefore, should not be heard separately but should be heard together with that revision. This contention of the learned counsel, though seemingly attractive, cannot be sustained in this case. Hearing of revisions or ap peals preferred against the judgments in two cross cases about the same occurrence should generally not be made on the same day and by the same Court. Hearing of revisions or appeals against the judgments of the trial Court in two different trials relating to the same incident are normally made by the, same Court and on the same day to avoid conflicting judgments but even in that situation, the evidence of one case cannot be read in another case. In the present case, we are not disposing of the case on merits. The fatal infirmity in the proceedings before the learned Additional Sessions Judge can lead to only one conse quence, namely, the remand of the Ses sions trial to the learned Additional Ses sions Judge for retrial and this would not involve any expression of opinion about the merits of the case. That being so, there will be no purpose of hearing the other revision alleged by the learned counsel for the accused opposite parties 3 to 8 together with this revision.;