Neutral Citation No. - 2025:AHC:134201 Court No. - 77 Case :- APPLICATION U/S 528 BNSS No. - 26283 of 2025 Applicant :- Anis Alias Guddu Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Shashi Dhar Shukla Counsel for Opposite Party :- G.A. Hon'ble Saurabh Srivastava,J. 1. Heard Sri Shashi Dhar Shukla, learned counsel for applicant and learned AGA for State. 2. Present application has been preferred with prayer to set aside the order dated 28.05.2025 passed by Session Judge, Basti in Criminal Revision no. 179 of 2025 (Anis @ Guddu vs. State) and order dated 05.05.2025 passed by Additional Civil Judge IInd, Senior Division/Additional Chief Judicial Magistrate, Basti whereby application under Section 311 Cr.P.C. in Criminal Trial no. 903987 of 2017 (State vs. Shamsuddin) arising out of Case Crime no. 59 of 2017 under Section 379 IPC along with 3/5/8 of Cow Slaughter Act, PS- Munderwa, District Basti has been rejected. Further prayer has been made to remand back the matter before the trial court for fresh adjudication upon the application under Section 311 Cr.P.C. totally in accordance with law within short stipulated time. 3. The instant application has been preferred for challenging order dated 05.05.2025 passed by learned Additional Civil Judge, IInd, Senior Division/Additional Chief Judicial Magistrate, Basti over an application preferred at the behest of prosecution under Section 311 Cr.P.C. and the same was rejected by learned concerned Judge with recording specific finding that on earlier occasion, application has been preferred at the behest of accused for discharging applicant as Prosecution Witness vide order dated 30.10.2023 and in any case, if the application preferred at the behest of prosecution under Section 311 Cr.P.C. will be allowed, the same will be contrary to the order dated 30.10.2023. It is also apparent from the record that the order dated 30.10.2023 has never been put under challenge before any higher forum. 4. Learned counsel for the applicant submitted that the implication of the applicant is under the Special Act and as such the capacity of the informant is the same as the capacity and the rights available with the prosecution and as such denial of the application preferred at the behest of prosecution is exactly the denial to the rights available in favour of applicant being the eye witness and as such, he is the necessary prosecution witness to be examined before learned trial court and the specific foundation of the argument is also based upon the list of witnesses as mentioned at the time of preferring charge sheet by concerned Investigating Officer after conducting detailed investigation wherein applicant had been mentioned as eye witness in Case Crime no. 59 of 2017 available at serial no. 6. 5. Per contra, learned AGA vehemently opposed the prayer as made in the application and rebutted the stand taken up by learned counsel for the applicant and submitted that revision preferred at the behest of applicant for challenging order dated 05.05.2025 was also dismissed vide order dated 28.05.2025 through which order dated 05.05.2025 has been held as legal one. It is also submitted by learned AGA that applicant is having no locus to defend the case of the prosecution, rather it is the prosecution who is entitled to challenge the order dated 05.05.2025, if aggrieved otherwise. 6. After hearing the rival submissions extended by learned counsel for the parties, the same ground which has been taken up by learned counsel for the applicant, that it is the applicant who had been made eye witness and as such his statement has to be considered and applicant being Prosecution Witness must be examined before learned trial court, the argument raised by learned counsel for the applicant is itself answered in the order dated 05.05.2025 wherein the specific order dated 30.10.2023 has been considered by learned court of Additional Chief Judicial Magistrate, Basti while passing order over an application preferred at the behest of prosecution under Section 311 Cr.P.C. that once the earlier order dated 30.10.2023 has already been passed by learned trial court through which the discharge of Prosecution Witness (applicant) has already been allowed under which circumstances fresh application under Section 311 Cr.P.C. before the same Court is maintainable. Reasoning recorded by learned trial court is quite justified and as such applicant is having no locus to challenge the same, rather the revisional court also recorded the same finding and revisional court dismissed the prayer on the ground of maintainability which needs no interference by this Court through instant petition and as such instant application u/s 528 BNSS stands dismissed. Order Date :- 7.8.2025 Shaswat Digitally signed by :- SHASWAT SINGH High Court of Judicature at Allahabad Digitally signed by :- SHASWAT SINGH High Court of Judicature at Allahabad