Teekam Singh vs IIIrd Addl. Session Judgo,Ghaziabsd & Ans.

C. A. Rahim, J.—This is a revision against the order dated 1981994 passed by learned IIIrd Additional Sessions Judge, Ghaziabad in Sessions Trial No. 36 of 1981. By that order learned Judge refused the prayer of the accused to recall two withesses of the prosecution. It has been argued that S. I. M. Singh, prepared the Panchayatnamas of the deceased persons and one S. I. J. Singh, recorded the statement under Section 161, Cr. P. C. of the withess Fakir Chandra Meharban. The contention of the learned Counsel for the revisionists is that the prosecution did hot examine those material withesses and refused to summon the withesses, would be fatal. The learned Judge by his order dated 1981994 has stated that the accused persons took several adjournments on one pretext or the other and at the stage of argument filed this application only to delay the case. He has also found that there is no deficiency and if there is no deficiency the accused persons will got no benefit.

In a sessions trial charge is framed under Section 228, Cr. P. C. Thereafter, the evidence of the withesses of the prosecution is taken under Section 231, Cr.P.C. and if no acquittal is made under Section 232, Cr.P.C. the accused is called upon to adduce evidence under Sec. 233, Cr.P.C. It appears that this application was filed after that stage when arguments are sought to be conducted under Section 234, Cr. P. C. From the ordersheet of the learned Judge it appears that the occurrence took place in the year 1977 and it was committed to the Court of Sessions in January, 1981 and the Sessions Trial was prolonged at the instance of the accused persons for long 13 years and the statements of the accused persons were recorded under Section 313, Cr. P. C. on 671993. So there was no reason to call for two police withesses for the reasons that they are the withesses of Panchayatnama and that other withesses sought to be examined from the side of the prosecution recorded statement of a withess under Section 161, Cr. P. C.

In the decision reported in 1991 ACC (suppl) page 147Govind Prasad Goenka v. State of U. P., "the courts have to act judicially and act upon the materials placed before it. But it is equally true that justice must be tampered with kindness and discretion curtailing the liberty of citizen should be exercised with care and caution." The observation of Hon''ble Judge cuts both ways. It is also applicable to the complainant who is waiting for a decision for more than 13 years and the accused persons are filing petitions one after another to delay the proceeding. In the instant matter no prejudice has been caused to the accused by refusing to call for the withesses in a belated stage. Those withesses are not eyewithesses and I fully agree with the finding of the learned Sessions Judge that if there has been any deficiency the accused persons will get benefit of it.

Moreover, I find that the order passed by the learned Judge is an interlocutory order. Learned Counsel has submitted Govind Prasad Goenka''s case (supra), wherein it was held that any order curtailing liberty of the citizen affects his rights and obligations and is naturally a final order. I do not find that the liberty of the accused person have been curtailed by the learned Judge.

In the case of Indra puri Primary Cooperative Housing Society Ltd. and another v. Sri Bhabani Gogoi, reported in 1991 SCC rR page 266, it was held that the orders which are interlocutory are not final in the general sense but fall in the middle course being on intermediate or quasi final order. Matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial and which result in denial of fair trial to the accused, will not be interloctory orders within the purview of Section 397 (2), Cr. P. C. In a criminal trial the prosecution is to prove its own case if they fail to tender withesses who will prove some documents and that too at a belated stage in the contexts that the case is being dragged for more than 13 years the prosecution will (sic) I do not find that rights and liberty of the accused have been curtailed and in other words any prejudice would have caused by that order to the accused persons. If due to that deficiency the prosecution is unable to prove certain documents the benefit will go to the accused and not to the prosecution.

No affidavit supporting the contention of the revisionists has been filed.

Considering all these aspects I find that there is no merit in this application and hence the revision is dismissed.

Revision dismissed.