Rajeev Saxena vs State of U.P.

J.C. Gupta, J.—A counteraffidavit filed on behalf of the opposite party No. 2 is taken on record. Rejoinder affidavit filed on behalf of applicant is also taken on record.

By means of this application a prayer has been made to quash the order dated 1211999 passed by Special Judge, Moradabad in Session trial No.981 of 1993 under Section 302, I.P.C. It appears that from the side of the prosecution an application was moved before the trial Court purporting to be under Section 311, Cr. P.Gtfor summoning some documents from the bank and from the Telephone department so that signatures of Smt Ram Sumarni Devi appearing on Ext. Ka 2 may be got verified by hand writing expert as Smt. Ram Sumarni Devi in her statement as a defence witness has denied her signatures on Ext. Ka 2. By the impugned order this application has been rejected.

A preliminary objection has been raised from the side of the opposite party that the present application has been moved by Shri Rajeev Saxena who is neither the first informant nor a prosecution witness in the trial in question hence he has no locus standi and since the impugned order has not been challenged from the side of the State this application is liable to be dismissed on this ground alone. This fact could not be disputed that the applicant Rajeev Saxena is neither the first informant nor a witness in the case nor the application in question has been moved through State counsel. Ii is contended by the applicant''s counsel that the applicant happens to be the brother of the deceased he is an interested person. Be that as it may, it is well established law that power under Section 311, Cr. PC. is lobe used only where the ends of justice so require and that cannot be utilised for filling up lacuna of any of the parties. Smt. Ram Sumarni Devi, appeared in witness box as a defence witness and she is neither an accused nor a witness of the prosecution. It could not be said that the prosecution was taken by Supreme by a defence evidence, therefore, this Court does not find any sufficient ground to make interference in the discretion exercised by the trial Court in refusing to summon the documents as was prayed in the application moved on behalf of the prosecution. It may also be relevant to mention here that Section 311, Cr. PC. does not empower the Court to summon the documents and only a witness can be summoned under the provision of that section.

For the reasons stated above, this application is dismissed. Stay order granted earlier is hereby vacated. Application dismissed.