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2016 DIGILAW 3307 (ALL)

Rajpal v. State of U. P.

2016-09-27

HARSH KUMAR

body2016
JUDGMENT Harsh Kumar, J. Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record. 2. The present application under Section 482 Cr.P.C. has been moved for quashing the order dated 9.8.2016 passed by Additional Sessions Judge Court No.3, Etah passed in S.T. No.96 of 2012 (State Vs. Yadram and others), under Sections 323, 307, 504 I.P.C., Case Crime No.208 of 2011, P.S. Mirehchi, District Etah. 3. Learned counsel for the applicant contends that Sessions Judge, Etah has acted wrongly in rejecting the application of accused-applicant under Section 311 Cr.P.C. for summoning the prosecution witness Somendra for further cross examination on the ground that it has not been disclosed in the application as to on which points the witness is sought to be further cross-examined. 4. Per contra, learned A.G.A. submits that impugned order is correct and law does not permit for recall of the witness for further cross examination. 5. Though under powers conferred by Section 311, a Court may summon or recall any witness at any stage, but it is settled principle of law that such powers are wide enough and ought to be exercised with restraint and judiciously and the Extra-ordinary provisions can not be used as an afterthought to fill up the lacuna/gaps. In the case of Shyam Kumar Vs. State of U.P., 2003(47) ACC 290, it was held that "Recalling of witness-- Powers very wide-- To be exercised with restraint and judiciously-- Not a tool to fill up the lacuna-- Change of counsel-- Certain questions left out from being asked from the witness-- Not sufficient to recall the witness for re-examination. 6. Accused cannot have the witness recalled for examination as a matter of right. Extra-ordinary provisions cannot be used as an afterthought to fill gaps." 7. The perusal of records as well as application for recall of prosecution witness Somendra shows that the applicant neither has mentioned the date when above was examined, nor has assigned any reason or questions, on which points his further cross examination is required. The impugned order is correct and does not suffer from any illegality, irregularity or impropriety. 8. The perusal of records as well as application for recall of prosecution witness Somendra shows that the applicant neither has mentioned the date when above was examined, nor has assigned any reason or questions, on which points his further cross examination is required. The impugned order is correct and does not suffer from any illegality, irregularity or impropriety. 8. Upon hearing learned counsel for the parties and perusal of record, I find that the applicant has failed to show any sufficient ground for exercise of inherent powers by this Court so as to prevent any abuse of process of court or otherwise to secure the ends of justice and there is no sufficient ground for for quashing the order dated 9.8.2016 passed by Additional Sessions Judge Court No.3, Etah passed in S.T. No.96 of 2012 (State Vs. Yadram and others), under Sections 323, 307, 504 I.P.C., Case Crime No.208 of 2011, P.S. Mirehchi, District Etah. The application is devoid of merits and is liable to be dismissed. 9. The application u/s 482 Cr.P.C. is dismissed accordingly. 10. Interim order, if any, stands vacated.