JUDGMENT

Deepak Verma, J.

Heard learned counsel for the applicant and learned AGA for the State.

2. The present 482 Cr.P.C. application has been filed to quash the impugned order dated 15.07.2023 passed by Additional Sessions Judge, Court No.5, Varanasi in Session Trial No.399 of 2019 ( State v. Girja Shankar & others) arising out of Case Crime No.722 of 2018, under sections 304B, 498A I.P.C., Police Station Rohaniya, District Varanasi, pending in the court of Additional Sessions Judge, Court No.05, Varanasi and direct the learned trial to summon and examine Pradeep Gaur as a defence witness on behalf of the applicant in Session Trial No.399 of 2019 (State v. Girija Shankar and others).

3. Learned counsel for the applicant submits that FIR was lodged by opposite party no.2 regarding unnatural death at police station Rohaniya, under sections 498A, 304B I.P.C. & Section ¾ Dowry Prohibition Act and as per postmortem and forensic reports, it was found that deceased consumed poison. Thereafter, charge-sheet was submitted against the applicant, who is husband of the deceased and other accused persons under sections 498A & 304B I.P.C. & Section ¾ Dowry Prohibition Act. One Pradeep Kumar @ Pradeep Gaur, brother of the deceased, was shown as witness in the prosecution witness column and was witness of the panchyatnama and statement under Section 161 Cr.P.C. was recorded during investigation. Counsel for the applicant next submits that during prosecution witness, application was moved by A.D.G.C.(Crl) that Pradeep Gaur, prosecution witness be discharged for giving evidence as he is influenced by defence and same was allowed by trial court by order dated 04.07.2022. Thereafter, examinations of prosecution witnesses were closed. During defence examination under Section 3 13 Cr.P.C. before trial court, applicant moved application for summoning Pradeep Gaur as defence witness and the application of the applicant was put in file on cost of Rs. 250/-. He next submitted that date was fixed for 27.06.2023 and on that day Pradeep Gaur could not appear and time granted with cost of Rs. 500/-. He further submitted that after putting application of applicant for summoning defence witness court cannot reject his application.

4. Learned counsel for the applicant next submits that in view of the law laid down in Sections 233 Cr.P.C. and 311 Cr.P.C. defence can apply for summoning of any witness for conducting fair trial. Trial court after hearing the parties and placing reliance over the judgment passed by Apex Court in State of M.P. v. Badri Yadav and another reported in (2006) 3 SCC (Cri) 337 accepted the prosecution application of 44 kha and rejected the prayer of the applicant-accused for considering Pradeep Gaur at serial no.5 as defence witness. Learned counsel for the applicant submits that rejection of the prayer of the applicant for summoning Pradeep Gaur as defence witness no.5, is wholly illegal and without application of mind and abuse of the process of the court and applicant's counsel has also placed reliance upon the judgement passed by Hon'ble Apex Court in Varsha Garg v. State of Madhya Pradesh and others reported in AIR 2022 SC 3707 and submitted that in view of the Hon'ble Apex Court judgment, the prosecution witness can be summoned as defence witness.

5. Per contra, learned A.G.A. vehemently opposed the submission of learned counsel for the applicant and submitted that applicant who is accused want to summon Pradeep Gaur as defence witness no.5 was infact prosecution witness and is real brother of the deceased and he has been discharged on the application of A.D.G.C.(Crl), as was not