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2016 DIGILAW 2632 (ALL)

SHAMEEM @ KALA v. STATE OF U. P.

2016-08-01

AMAR SINGH CHAUHAN

body2016
JUDGMENT Hon’ble Amar Singh Chauhan, J.—The applicant, Shameem @ Kala, through this application under Section 482 Cr.P.C. has invoked the inherent jurisdiction of this Court with a prayer to quash the order dated 21.8.2015 and order dated 5.7.2016 passed by the Additional Sessions Judge, Court No. 7, Bijnor in Sessions Trial No. 566 of 2014 (State v. Shameem @ Kala) under Sections 452, 307, 506 IPC, P.S. Heempur, District Bijnor arising out of Case Crime No. 142 of 2012 and direct the Court below to summon the PW-5 to PW-7 for cross-examination. 2. It is submitted by the learned counsel for the applicant that this petition is filed against the order dated 21.8.2015 and order dated 5.7.2016 passed by the Additional District Judge, Court No. 7, Bijnor in Sessions Trial No. 566 of 2014 (State v. Shameem @ Kala) under Sections 452, 307, 506 IPC, P.S. Heempur, District Bijnor arising out of Case Crime No. 142 of 2012 whereby the learned Additional Sessions Judge has closed the opportunity of accused/applicant to cross-examine the PW-5, Sub Inspector, Daya Ram Arya, PW-6, Dr. Dharya Kumar Jain and PW-7, Constable Sohan Lal Singh. It is further submitted that after examining PW-1 to PW-3, the statement of PW-4, Dr. Arbind Kumar was recorded. During cross-examination, it appears that the Presiding Officer is not recording the statement as per answer given by the prosecution witness. Certain objections were raised by the counsel for the applicant and the Court made corrections in the statement but the Presiding Officer also expressed the opinion that the result of trial will be in conviction. On 13.8.2015, 21.8.2015 and 23.11.2015 the statements of Sub Inspector Daya Ram Arya, Dr. Dharya Kumar Jain and Constable Sohan Pal Singh were recorded as PW-5 to PW-7 in the Court but the witness could not be cross-examined and adjournment application was rejected. 3. The applicant moved an application for recalling the said witness but the same was also rejected. Therefore, applicant moved application under Section 408 Cr.P.C. for transferring the Session Trial to another Court. Learned Sessions Judge after considering the grievance of applicant, transferred the Session Trial to the Court of A.S.J., Court No. 3. It is further submitted that for the just decision of case, cross-examination is very much essential and learned Court without any valid reason struck down the opportunity to cross-examine the aforesaid witnesses. 4. Learned Sessions Judge after considering the grievance of applicant, transferred the Session Trial to the Court of A.S.J., Court No. 3. It is further submitted that for the just decision of case, cross-examination is very much essential and learned Court without any valid reason struck down the opportunity to cross-examine the aforesaid witnesses. 4. Learned AGA submits that no useful purpose would be served in keeping this petition pending before this Court and the same may be disposed of at this stage. 5. The only prayer made by the applicant is that the Additional Sessions Judge, Bijnor be directed to recall PW-5 to PW-7 for cross-examination as the opportunity to cross-examine the witness has been declined. Closing the opportunity for cross-examination is not the solution of this problem. If the accused were misusing the liberty of bail and were not cooperating in the due progress of the case and failed to cross-examine the witness despite sufficient opportunity, it would have to proper to cancel the bail in stead of closing the opportunity of the cross-examination. No one should be condemned unheard. Section 311 Cr.P.C. runs as follows: “Power to summon material witness, or examine person present. 311. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.” 6. In the case at hand, the applicant appears to be contesting the case and he was present on each and every date fixed by the trial Court. The trial is pending since 2014 and four prosecution witnesses have been examined and therefore, it cannot be said that applicant is adopting delaying tactics. 7. Denial of an opportunity to recall the witnesses for cross-examination would amount to condemning the applicant without giving him the opportunity to challenge the correctness of the version and the credibility of the witnesses. It is trite that the credibility of witnesses whether in a civil or criminal case can be tested only when the testimony is put through the fire of cross-examination. It is trite that the credibility of witnesses whether in a civil or criminal case can be tested only when the testimony is put through the fire of cross-examination. Denial of an opportunity to do so will result in a serious miscarriage in justice in the present case keeping in view the serious consequences that will follow any such denial. 8. The Hon’ble Apex Court in the case of Hanuman Ram v. State of Rajasthan, (2008) 15 SCC 652 , has observed that “this is a supplementary provision enabling, and in certain circumstances imposing on the Court the duty of examining a material witness who would not be otherwise brought before it. It is couched in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the Court should be exercised, or with regard to the manner in which it should be exercised. It is not only the prerogative but also the plain duty of a Court to examine such of those witnesses as it considers absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the Court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts.” 9. The object underlying Section 311 Cr.P.C. is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined. The determinative factor is whether it is essential to the just decision of the case. The evidence of the prosecution witness Nos. 5 to 7 are essential for the just decision of the case. The prosecution may not suffer prejudice on account of summoning the witnesses as the applicant has moved the application for recalling the witnesses promptly. 10. The determinative factor is whether it is essential to the just decision of the case. The evidence of the prosecution witness Nos. 5 to 7 are essential for the just decision of the case. The prosecution may not suffer prejudice on account of summoning the witnesses as the applicant has moved the application for recalling the witnesses promptly. 10. The submissions made at the bar mainly relate to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. only in cases where the Court finds that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order was not correct, this power may be exercised to prevent the abuse of process or miscarriage of justice. 11. Without expressing any opinion on merit of the case and after setting aside the impugned orders, this application is finally disposed of with a direction to the Additional Sessions Judge, Bijnor to recall the witnesses PW-5, Sub Inspector Daya Ram Arya, PW-6, Dr. Dharya Kumar Jain and PW-7, Constable Sohan Lal Singh at the cost of the applicant and provide one more and last opportunity to the applicant to cross-examine the above witnesses who have not yet been cross-examined for the just decision of the case. The trial Court is directed to expedite the trial without granting adjournment from either side on insufficient ground. ——————