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2004 DIGILAW 166 (JK)

Imtiyaz Ahmad v. Mohd. Khalil Wagay

2004-05-26

SYED BASHIR-UD-DIN

body2004
Petitioner/accused is facing trial under section 420 R.P.C. and 138 of Negotiable Instrument Act in Complaint file No. 50/98/2002 pending on the file of Sub Judge, Judicial Magistrate Pulwama. The case is at post evidence charge stage. When the accused was to lead evidence in defence, he moved an application before the trial magistrate, praying for recalling of the complainant for re-cross examination by him. However, the prayer was rejected by the trial court on 24.10.2003. The revision is directed against this order. 2. The order is challenged on the ground that the procedure has not been followed. After the accused was charged, he was to be given an opportunity to cross examine the prosecution witnesses whose evidence had been recorded at pre charge stage and if the accused so opted the witness (es) was to be recalled for cross examination and re-examination. It is only thereafter that the rest of the prosecution witness were to be examined and the accused was required to enter upon his defence and produce evidence. 3. Heard counsel for the parties. Perused the record. 4. After the accused was charged in writing for indictment under section 138 of Negotiable instrument Act read with Section 420 R.P.C., on 8.8.2002, he was asked whether he pleaded guilty. The accused pleaded not guilty. He was even asked whether he wishes to say any thing further. In answer to this question, the accused has not pointed to any deficiency in procedure or any prejudice caused to him in the case. 5. Prosecution opted, not to examine any further evidence and the accused was given option to lead evidence in defence. This was so directed on 23.9.2002. From 23.9.2003 accused failed to lead any evidence in defence and it was on 16-01-2003 that the defence evidence was closed and case set for arguments. Even during this period, accused never moved the Court for recalling of complainant for further cross examination, whom accused did cross examine during the proceedings at pre-charge stage. 6. In the meanwhile, the order of closure of the defence evidence dated 16.1.2003 was challenged in revision before the High Court. Accused represented by Advocate Shri Mohd Ayoub prayed for just one opportunity to lead evidence. The then AAG, Mr.M..Attar, took no objection to grant of opportunity to lead evidence. 6. In the meanwhile, the order of closure of the defence evidence dated 16.1.2003 was challenged in revision before the High Court. Accused represented by Advocate Shri Mohd Ayoub prayed for just one opportunity to lead evidence. The then AAG, Mr.M..Attar, took no objection to grant of opportunity to lead evidence. It was in such circumstances, the high court directed: -- " In this view of the matter the order dated 16th of January 2003 passed in the complaint by which the defence evidence of the petitioner has been closed is set aside with the observations that Ld. trial court shall grant one more opportunity, which shall be final opportunity to the petitioner to produce and examine his witnesses in defence. The petition to that extent only is allowed and accordingly disposed of. The parties to the petition are directed through their counsel to appear before the Ld. Trial court on 14th of June 2003. The record alongwith the copy of judgment be sent to the trial court." 7.. On 14.6.2003, the date set for appearance of parties before trial Magistrate, complainant with counsel alone appeared. The accused and his counsel repeatedly failed to appear before the trial court on 14.6.2003, 3.7.2003, 14.7.2003, 12.8.2003, 8.9.2003 and 26.9.2003. It is only on 9.10.2003 that the accused with counsel appeared before the court below. The trial Magistrate gave one more opportunity to accused to lead evidence on next adjourned date of 24.10.2003. The accused instead of leading evidence in defence/on this date filed an application praying for recalling of the complainant for cross examination. The court after hearing the counsel for the parties dismissed the application and closed the defence evidence and posted case for final arguments. 8. It is fairly noticeable that the accused at no stage complained of any prejudice. He did not despite opportunities indicate his option to further cross-examine the complainant whom he had already cross examined. Before the High Court accused through counsel solicited for just one opportunity to lead evidence. When High Court granted this prayer as above, he failed to appear before the trial Magistrate on given date and thereafter on several adjourned dates. Filing of the application in question is nothing but a tactical move on the part of accused to protract and prolong proceedings. When High Court granted this prayer as above, he failed to appear before the trial Magistrate on given date and thereafter on several adjourned dates. Filing of the application in question is nothing but a tactical move on the part of accused to protract and prolong proceedings. By his conduct as seen from proceedings as above, he does not appear to have approached the court with clean hands and has been bussying himself to gain time and to drag on the proceedings as far as he can without putting up any defence before the trial Magistrate. The accused who is making noise about non compliance of provisions of 256 Cr.P.C has no-where in the application stated that he is coming up with the application under this provision. The trial Magistrate is justified in assuming that the application is moved under section 540 Cr.P.C. The attempt to compartmentalize the applicable provisions of Cr.P.C as applicable to this case apart, the accused on over all reading and judging of the proceedings has in fact had the opportunity to pray for cross examination of the prosecution witnesses examined at pre-admission stage, which he has not done. Once he has waived this right and foregone the opportunity, he is precluded under law to seek at the fag end of the case, opportunity to re-cross examining complainant, not for any legal expediency or just requirement, but only to pro-long the proceedings. Even in the application or in his submissions by the counsel, it is not disclosed why the complainant is required to be called for re-cross examination. To say in omnibus terms that it is for unfolding of vital aspects of the allegations embodied in body of complaint, without particulars and details, cannot be a basis to entertain the request of recalling of the complainant for re-cross examination in the facts and circumstances of the case. 9. No case of illegality, impropriety or incorrectness of the impugned or irregularity of the, proceedings before the trial magistrate arise in this case. The order is within parameters of law and proper. There is no merit in this Revision Petition. Dismissed. Inform court below of this order, and send back record.