The discretion to recall or summon witnesses lies with the court, and such requests should not be used to stall proceedings.

JUDGMENT :

1. Sri S.N. Singh Gaherwar, Advocate has put in appearance on behalf of opposite party No.2 by filing his vakalatnama in Court today, which is taken on record.

2. Heard Sri Tung Nath Tiwari, learned counsel for the applicant, learned A.G.A. appearing for the State, Sri S.N. Singh Gaherwar, learned counsel for opposite party No.2 and perused the entire record.

3. By means of instant application under Section 482 Cr.P.C., the applicant seeks for quashing the order dated 25.05.2022 passed by the learned Special Judge (Ayurved Scam Matter), Lucknow in Sessions Trial No.474 of 1997 (State of U.P. vs. Ashwani Kumar Mishra) and for permitting him to cross examine the prosecution witness, Surendra Prakash Tripathi and also to summon Nomilal and Dwarika as witnesses.

4. From a perusal of record, it transpires that Sessions Trial No.474 of 1997 (State of U.P. vs. Ashwani Kumar Mishra) is pending in the court of Special Judge (Ayurved Scam Matter), Lucknow. In the aforesaid Session Trial, the present accused/applicant, Ashwani Kumar (Mishra) moved an application dated 21.05.2022, under Section 311 Cr.P.C. praying to recall PW-3, Surendra Prakash Tripathi and also praying for summoning witnesses, namely, Nomilal and Dwarika as they are independent witnesses who were not examined by the prosecution in exercise of their right of adducing prosecution evidence.

5. This application dated 21.05.2022, which was moved under Section 311 Cr.P.C., came to be rejected by the learned trial court by a detailed impugned order dated 25.05.2022.

6. Learned counsel for the applicant has submitted that PW-3, Surendra Prakash Tripathi is alleged to have been present on the spot and have witnessed the incident-in-question. He contends that the accused/applicant, Ashwani Kumar (Mishra) did not get opportunity to cross examine PW-3, Surendra Prakash Tripathi which would cause him prejudice as it would amount to denial of opportunity of fair trial to him.

7. His further submission is that though the order sheet would reveal that the opportunity of cross-examination for accused/applicant, Ashwani Kumar (Mishra) was closed by the then learned trial judge with the endorsement that learned counsel for the accused/applicant has stated to adopt the detailed cross-examination done by the other accused persons. However, no such written consent was given by his counsel. Therefore, denial of opportunity of cross-examination to the present accused/applicant which would cause prejudice to him.

8. Learned counsel for the accused/applicant has also submitted that all the witnesses produced by the prosecution are interested witnesses. Therefore, the prosecution ought to have produced Nomilal and Dwarika as independent witnesses whose names find mention in the charge sheet.

9. Per contra, learned A.G.A. appearing for the State has vehemently opposed the prayer for grant of relief prayed for by submitting that the trial of aforesaid Sessions Trial is pending since the year 1997. Reasonable opportunity was afforded to all the accused persons including the present accused/applicant, Ashwani Kumar (Mishra) and only thereafter, when the learned counsel for the accused/applicant adopted the cross-examination done by other accused persons, the opportunity of cross-examination of PW-3, Surendra Prakash Tripathi came to be closed. This application, at a belated stage, has been moved malafidely and with a view to stall the proceeding.

10. His further submission is that the prosecution cannot be compelled to produce any particular witness. In support of its case, the prosecution has examined the witnesses whom the public prosecutor thought proper to get examined in order to bring home guilt of the accused persons including the present applicant. Therefore, the prosecution cannot be compelled to produce any such witness. He has, thus, prayed for dismissal of the instant application under Section 482 Cr.P.C.

11. Having heard learned counsel for the applicant, learned A.G.A. for the State, l