Sunit Tyagi vs State of U.P. and Om Pal Singh

Amar Saran, J.—Heard learned Counsel for the applicants, Shri U.C. Yadav, learned Counsel for opposite party No. 2 and learned Additional Government Advocate.

A An order dated 29.8.2007 passed by the learned Additional Chief Judicial Magistrate, Court No. 2, Muzaffamagar in Criminal Case No. 645/9 of 2007 (Om Pal v. B.B. Bohra and Ors.) has been challenged by means of this application whereby the learned Magistrate has rejected the application of the applicant for being examined as a witness u/s 202 Cr.P.C as the complainant gave him up.

The reason for passing the said order mentioned by the learned Magistrate was that after an order was passed by the High Court on 20.4.2007 in Application No. 5213 of 2007 setting aside the order of dismissing the complaint u/s 203 Cr.P.C passed by the learned Magistrate and remanding matter to the learned Magistrate for reconsideration of the case on merit, in view of the High Court''s observations that on the basis of the statement of the complainant recorded u/s 200 Cr.P.C., that a prima facie offence appeared to be made out against the accused. However, after the remand in pursuance of the said order, it appears that the predecessor Magistrate of the present Additional Chief Judicial Magistrate-II Court No. 2 had passed the order dated 29.8.2007 allowing the complainant to produce certain witnesses u/s 202 Cr.P.C. The present learned Magistrate however observed that his predecessor Magistrate appeared to have wrongly granted the said permission, but as an order had already been passed by his predecessor Magistrate allowing the complainant to produce some witnesses u/s 202 Cr.P.C., he could not recall the said order in view of the the bar prohibiting review of an earlier decision contained in Section 362 Cr.P.C. But so far as the applicant, who wanted to examine himself u/s 202 Cr.P.C was concerned, the said permission could not be granted to him because the order of the High Court dated 20.4.2007 did not require re-examination of the witnesses, but the matter was only remanded to the lower court for disposal of the application on merit in the light of the observations in the High Court''s order.

Independent of this reasoning, in my view, it is the option of the complainant to produce any witnesses that he chooses as his witnesses u/s 202 Cr.P.C. No doubt in the present case the applicant had been mentioned as a witness in the application u/s 156(3) Cr.P.C., which was filed in the beginning, but it appears that the said witness had become unfavourable to the complainant and in his statement u/s 161 Cr.P.C to the police also he had supported the accused version, and set up a version which he described as the real truth.

Even in police cases it has been held in AIR 2004 SC 3114, Zahira Habibullah H. Sheikh'' and Anr. v. State of Gujarat and Ors. that it is not necessary for the public prosecutor to examine those witnesses who have become unfavourable to the prosecution. The relevant lines in paragraph 75 A of the law report read as follows:

75A. A somewhat an unusual mode in contrast to the lapse committed by non-examining victims and injured witnesses adopted by the investigating agency and the prosecutor was examination of six relatives of accused persons. They have expectedly given a clean chit to the accused and labeled them as saviors. This unusual procedure was highlighted before the High Court. But the same was not considered relevant as there is no legal bar. When we asked Mr. Rohtagi, learned Counsel for the State of Gujarat as to whether this does not reflect badly on the conduct of investigating agency and the prosecutor, he submitted that this was done to show the manner in which the incident had happened. This is a strange answer. Witnesses are examined by prosecution to show primarily who is the accused. In this case it was nobody''s stand that the incident did not take place. That the conduct of investigating agency and the prosecutor was not bona Fide, is apparent and patent.

Again in Banti @ Guddu Vs. State of Madhya Pradesh, it has been stated in paragraph 14 that the prosecution is not required to produce witnesses about whom they have advance information that they would not support the prosecution case. Paragraph 14 reads as under:

The situation in a case where the prosecution cited two categories of witnesses to the occurrence, one consisting of persons closely related to the victim and the other consisting of witnesses who have no such relation, the Public Prosecutor''s duty to the Court may require him to produce witnesses from the later category, also subject to his discretion to limit to one or two among them. But if the Public Prosecutor got reliable information that any one among that category would not support the prosecution version he is free to state in court about that fact and skip the witness from being examined as a prosecution witness. It is open to the defence to cite him and examine him as a defence witness. The decision in this regard has to be taken by the Public Prosecutor in a fair manner. He can interview the witness beforehand to enable him to know well in advance the stand which that particular person would be adopting when examined as a witness in Court.

A fortiorari there is even lesser obligation on a complainant to allow examination of his unfavourable witnesses u/s 202 Cr.P.C in a complaint case. It is another matter that there is no fetter on the trial court at any stage to examine any witnesses if it deems fit in the interest of justice or for the accused to move an application at the appropriate stage for examining some witnesses in his defence, but the court cannot be compelled to examine a witness u/s 202 Cr.P.C., which has been given up by the complainant because that witness, who may have become partial to the accused wishes to examine himself.

In this view of the matter, there is no force in this application. It is accordingly rejected.