The Proceeding Of Mact Case No.253 ... vs Unknown
2023 Latest Caselaw 2607 UK

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                                 C482 No.1754 of 2023
                                 Hon'ble Sharad Kumar Sharma, J.

Mrs. Prabha Naithani, learned counsel for the applicant.

Mr. V.K. Gemini, learned Deputy Advocate General for the State.

The proceeding of MACT Case No.253 of 2011, "Saleem Ahmed Vs. Dr. P.C. Jain & Others" has been concluded by the judgment of 04.12.2014. But, the learned MACT while concluding the judgment has observed to draw a proceedings under Section 344 of the Cr.P.C. against the present applicant, as he has appeared as a witness as PW2, despite of the fact, that his name did not appear in the list of witnesses, as it was provided in the chargesheet, submitted in pursuance to the culmination of investigation of the FIR with regards to the accident, which was subject matter of MACT Case No.253 of 2011. Learned counsel for the applicant takes a support of a case, that he could not have been summoned in Misc. Case No.95 of 2014, "State V. Saleem and Another", for the reason, being that even if it is presumed for the time being that he has deposed as PW2, though he was not appearing as a witnesses in the chargesheet, she submits that, in the light of the judgment of the Co-ordinate Bench, as rendered in C482 No.44 of 2015, "Narendra Saini Vs. State of Uttarakhand" in which it has been laid down that even if a person appears as a prosecution's witness and records his testimony, that ought to have been opposed at first available opportunity by the other side as soon as the deposition commences. If that is not done, the applicant cannot be said to be liable for being prosecuted under Section 344 of the Cr.P.C. In view of the ratio laid down by the Co- ordinate Bench on 16.01.2015, since there was no malice pleaded on the part of the present applicant to depose as PW2, coupled with the fact, that there were no opposition raised at the initial stage, the matter stands squarely covered by the judgment of 16.01.2015 and which is a fact not disputed by the learned Government Advocate, thus, the C482 Application would stand allowed.

As a consequence thereto, the summoning order issued against the present applicant for being tried for the offence under Section 344 of the Cr.P.C., which is impugned in the present C482 Application, would hereby stand quashed.

As a consequence thereto, the proceedings of Misc. Case No.95 of 2014, "State Vs. Saleem & another" as drawn by the Court of the learned Additional District and Sessions Judge, Vikasnagar, Dehradun, would be laid to rest.

(Sharad Kumar Sharma, J.) 04.09.2023 Sukhbant