State Of Chhattisgarh Through Police Station Nandghat, District : Bemetara, Chhattisgarh Respondent For the Petitioners : Shri Uttam Pandey, Advocate. For Respondent/ State : Shri Vimlesh Bajpai, G.A. Hon'ble Shri Justice Rakesh Mohan Pandey ORDER 07.10.2023 1. In this petition, the petitioners have challenged the order dated 12.9.2023 passed by the learned Special Judge, Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'the Atrocities Act'), Bemetara in Special Case No. 6 of 2022 whereby an application moved by the complainant/ informant under Section 311 of Cr.P.C. for summoning an eyewitness, whose statement was recorded during the investigation as a witness, has been allowed by the learned trial Court. 2. The facts of the present case are that the petitioners are being tried for the commission of offences punishable under Sections 302, 201 read with Section 34 of IPC and Section 3(2)(v) of the Atrocities Act. The police 2 investigated the case and filed the chargesheet. It is not in dispute that Narayan Prasad Sahu is not a cited witness as per the chargesheet filed by the Investigating Agency. 3. During the pendency of the criminal case, the father of the deceased moved an application under Section 311 of Cr.P.C. for summoning the witness whose statement was recorded during the course of investigation and who was an eyewitness of the incident but he was not cited as a witness in the chargesheet. A copy of the aforesaid application was supplied to the counsel for the petitioners and counsel for the State. 4. The prosecution/ State counsel filed reply and pleaded no objection whereas, the petitioners filed reply and raised serious objections and stated that the statement under Section 161 of Cr.P.C. of Narayan Prasad Sahu was not recorded by the police, therefore, the same was not annexed alongwith the chargesheet. It is also stated that Narayan Prasad Sahu is not an eyewitness and if he would have seen the incident, it ought to have been brought into the notice of Investigating Agency immediately. It is also stated that according to provisions of Section 302 of Cr.P.C. such person may assist the Court but no application can be moved by such person and a prayer was made to reject the application. 5. The learned trial Court observed that the statement of Narayan Prasad Sahu S/o Rahu Lal Sahu aged about 50 years resident of Village Bawli, Police Station Sargaon, District Mungeli was recorded and he was an eyewitness but he was not cited as a witness by the police in the charge sheet which creates suspicion. It is also held by the learned trial Court that 3 the evidence of such witness is necessary for just decision of the case. Learned trial Court with regard to Section 39 of Cr.P.C. held that the statement of Narayan Prasad Sahu was recorded immediately after the incident and an application moved under Section 311 of Cr.P.C. was allowed. 6. Learned counsel for the petitioners would submit that the person, whose application under Section 301(2) of Cr.P.C. has been allowed, has only the right to assist the Court and no application can be moved by such a person. He would also submit that an application moved by father of the deceased/ informant was not maintainable at all and the learned trial Court has committed an error of law by allowing such an application. He has placed reliance on the judgment passed by the Hon'ble Supreme Court in the matter of Rekha Murarka vs. State of West Bengal and Another, reported in (2020) 2 SCC 474 wherein the Hon'ble Supreme Court while dealing with the right of victim's counsel to assist the prosecution in paragraphs 7 and 11 held as under: "7. In our criminal justice system, the Public Prosecutor occupies a position of great importance. Given that crimes are treated as a wrong against the society as a whole, his role in the administration of justice is cru