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Allahabad High Court · body

2005 DIGILAW 77 (ALL)

Bachanu Yadav, Sri Paggal Yadav v. State of U. P.

2005-01-18

AMAR SARAN

body2005
AMAR SARAN, J. ( 1 ) HEARD Shri S. P. Singh, learned counsel for the applicants, Shri R. N. Rai, learned counsel appearing for the complainant and learned Additional Government Advocate representing the state. ( 2 ) THIS application under Section 482 Cr. P. C has been filed against the order dated 9. 9. 2002 passed by the Additional District and Sessions Judge/ Fast Track Court No. 1, Mirzapur in S. T. No. 259 of 1990 whereby the learned Judge has declined to summon the witnesses namely rajnish Bhushan, P. W. 1, Sabhajeet Singh, P. W. 2 and Sanjay Kumar Singh, P. W. 3 for further cross examination by the defence and for a direction to the trial court to summon those witnesses. ( 3 ) THE order dated 9. 9. 2002 has been challenged on the following grounds: 1. That as the cross case filed by the applicants being S. T. No. 47 of 1992 has not been brought before the same Fast Track Court where S. T. No. 259 of 1990 was pending against the applicants and on the dates when these three witnesses were examined i. e. 4. 9. 2001, 22. 9. 2001, the case had not been committed to this Fast Track Court, but it reached the said Court on 6. 11. 2001 and accordingly the applicants were deprived of opportunity to cross examine the witnesses with respect of the matter which arose in the cross case. 2. There were eight accused persons and three of them were represented by Shri Mohd Aqil, advocate, who was 81 years in age and he could not reach the first floor where the case was being conducted for cross examination of three witnesses. 3. The Court has allowed the prayer of the prosecution for recalling the investigating officer by the order dated 2. 9. 2003 and the court has acted in discriminatory manner in disallowing the prayer as the applicants wanted to re-examine the witnesses. ( 4 ) IN the rejoinder affidavit it was pointed out that Rajnish Bhushan, who filed counter affidavit is not an injured person nor was he an aggrieved person and he was not empowered to file any counter affidavit in this case as he has no locus standi in the matter. 4. ( 4 ) IN the rejoinder affidavit it was pointed out that Rajnish Bhushan, who filed counter affidavit is not an injured person nor was he an aggrieved person and he was not empowered to file any counter affidavit in this case as he has no locus standi in the matter. 4. I think the court below has committed no illegality in rejecting the prayer for recalling the aforementioned witnesses by holding that the application has been made for delaying the proceedings as the matter is of 1985 and sessions trial is pending since 1990. Simply because the trials, being S. T. No. 47 of 1992 in which the applicants and others are complainant and S. T. No. 259 of 1990 in which the applicants are accused, were not pending in the same court although both had been committed on that date would not in any way deter the applicants from cross examining the witnesses about some of the materials mentioned in S. T. No. 47 of 1992. Hence only because the cross-case had now reached the same court could provide no ground to recall the witnesses. It was mentioned in the impugned order that specific questions in respect of the gross case had been asked from the witnesses at page 7 in the case of Rajnish, P. W. 1, at page 8 in the case of Sabhajeet, P. W. 2 and at page 8 in the case of Sanjay Kumar, P. W. 3. ( 5 ) SO far as the first question raised by the learned counsel for the applicants is concerned, the same has been answered in the impugned order dated 9. 9. 2002 in which it has been mentioned that as both the cases had been committed, it does not matter that the cross case had not reached the same court on the date when the cross examination was done and it was always open to the learned counsel for the accused to ask questions with respect to the cross case and in fact they had asked questions about the said cross-case and the witness P. W. Sabhajeet disclaimed knowledge whether in respect of that incident any cross case was filed against Kamlesh, Nagesh, loknath, Deena Kamla Singh, Sanjay Singh etc. and also denied seeing any injury on the injured from the side of the applicants. and also denied seeing any injury on the injured from the side of the applicants. ( 6 ) LIKEWISE, Sanjay Kumar Singh, P. W. 3 has also specifically denied that they caused any injury to the applicants side, i. e. Ram Briksh, Raju, Ram Sajiwan, Shyam etc. However, he has admitted that a case was filed against them by the police. ( 7 ) SO far as the second contention of the applicants that counsel for three accused persons namely Mohd Aqil was too old to go on the first floor for the purpose of cross examination of p. Ws 1, 2 and 3, it may be mentioned that the evidence of these three witnesses have been filed by the applicants and there has been extensive cross examination of these three witnesses by the counsel and as has been mentioned above specific questions on the cross case and the injury received by the applicants were asked from the witnesses and they gave replies to the same. Thus, no purpose would be served in recalling these witnesses for further cross examination and for extending the already lengthy cross examination, which they had undergone and in any case no prejudice appears to have been caused by not affording any further opportunity for cross examination of these witnesses by the accused. ( 8 ) SO far as the third contention raised by the learned counsel for the applicants that the trial court has allowed the prayer of the prosecution for recalling the investigating officer, it has been specifically and rightly mentioned in the order dated 2. 9. 2003, by which the said prayer under section 311 Cr. P. C. was allowed that tile some essential material evidence namely, site plan, seal mohar, Naksha nash, police form No. 3, memos prepared by the medical officer and the blood stained clothes etc. were required to be proved. Also the court had repelled the prayer of the applicant that P. W. 5 Sarju Prasad, Sub-Inspector had appeared twice, yet these documents were not examined. This point was answered by the court concerned by observing that these are very material pieces of evidence and it is necessary to prove them for the disposal of the case and if because of some accidental omission on the part of the prosecution they could not be proved earlier, the witness could be re-examined for that purpose. This point was answered by the court concerned by observing that these are very material pieces of evidence and it is necessary to prove them for the disposal of the case and if because of some accidental omission on the part of the prosecution they could not be proved earlier, the witness could be re-examined for that purpose. ( 9 ) HERE it may be mentioned that in the case cited by the learned counsel for the applicants, i. e. Rajendra Prasad v. The Narcotic Cell, Delhi, 1999 (39) 333, it has been held that if the essential material evidence and documents are not produced, it may be expedient in the interest of justice for recalling a particular witness for proving the said document. ( 10 ) IN the aforesaid law report the Supreme Court had observed: " A lacuna in prosecution is not to be equated with the fallout of an oversight committed by a public prosecutor during trial eighter in producing relevant materials or in eliciting relevant answers from witnesses " ( 11 ) BUT so far as the applicants were concerned, as pointed out above, extensive cross examination including on the point of cross case and injury to the side of the accused were put to at least two of the witnesses. ( 12 ) SO far as the fourth point is concerned, here it may be mentioned that no objection was raised by the State to the filing of the counter affidavit by Shri Rajnesh Bhushan. Also in a cognizable offence under Section 302 IPC, rules of locus standi should not be very restrictively and narrowly construed. Moreover, there is nothing to restrict the over-arching powers of this Court from hearing Rajnesh Bhushan, if he has filed the counter affidavit, if it deems fit that hearing him would serve the ends of justice. But it may be noted, that for the purpose of disposal of this application, this Court has only relied on the application and affidavits filed by the applicants. Even on perusal of the said affidavits and application the Court is not satisfied that any case is made out for interference with the impugned order dated 9. 9. 2002 passed by the Fast Track court No. 1, Mirzapur rejecting the prayer for summoning the witnesses. Even on perusal of the said affidavits and application the Court is not satisfied that any case is made out for interference with the impugned order dated 9. 9. 2002 passed by the Fast Track court No. 1, Mirzapur rejecting the prayer for summoning the witnesses. ( 13 ) IN this view of the matter, there is no force in this application, it is accordingly dismissed. 15. However, in the circumstances of the case, in case the trial has not yet been concluded, the trial court is directed to conclude the trial within four months, if possible.