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Allahabad High Court · body

2016 DIGILAW 3331 (ALL)

Rajkapoor Bind v. State of U. P.

2016-09-28

ALOK KUMAR MUKHERJEE

body2016
JUDGMENT Alok Kumar Mukherjee,J. Supplementary affidavit filed by the learned counsel for the applicant, let the same be taken on record. Heard Sri Bhuwan Raj, learned counsel for the applicant and learned A.G.A. for the State and perused the material placed on record. 2. This application under Section 482 Cr.P.C. has been filed for quashing of the impugned order dated 13.10.2016 passed by the learned Additional Sessions Judge, Fast Track Court, Court No.20 in Session Trial No.1207 of 2013, arising out of Case Crime No. 41 of 2013, under Sections 342, 323, 504, 313, 506 and 376 IPC, Police Station Kaundiyara, District Allahabad and further for directing the learned trial court to recall P.W.-1 informant/victim for her cross examination by the learned counsel for the present accused-applicant only. 3. The contention of the learned counsel for the applicant is that the present FIR has been lodged against the applicant and others on 04.04.2013 by the informant/victim, in which the police has submitted the charge-sheet against the applicant and others on 13.07.2013 and thereafter, the trial commenced. In the said trial, earlier, the then learned counsel for the applicant was unable to cross-examine the informant/victim, due to his own illness, therefore, he engaged another counsel, but till then the cross examination of the P.W.-1 informant/victim, was closed on 30.09.2015 by the learned trial Judge. Therefore, an application (no. 28-Kha) was moved before the concerned trial court, on behalf of the applicant, with a request to recall the P.W.-1 informant/victim for cross examination by the applicant alone, because she (P.W.-1) was never cross-examined by his counsel, but the same was rejected by the learned trial Judge, vide impugned order dated 13.10.2016, on the ground that P.W.-1 was cross examined on behalf of all the accused persons including the applicant and also for the reason that the application was moved at a belated stage. 4. He further submitted that the impugned order is arbitrary one and is also against the interest of justice, therefore, the same should be set aside. He further contended that the applicant is ready to deposit the costs for recalling the P.W.-1 informant/victim for cross-examination. He also undertaken that if only one opportunity would be given to him, the applicant shall not seek any further adjournment in the trial and if the applicant fails to keep his undertaking then the cross examination of the witness (P.W.-1) might be closed. He also undertaken that if only one opportunity would be given to him, the applicant shall not seek any further adjournment in the trial and if the applicant fails to keep his undertaking then the cross examination of the witness (P.W.-1) might be closed. 5. Learned AGA opposed the prayer for quashing of the impugned order and has submitted that as is evident from the material on record that the witness (P.W.-1) was cross examined by all the accused persons and the application which was moved on behalf of the applicant was moved at a very belated stage malafidely, just to delay the proceeding of the trial, hence, the same was rejected by the learned trial Judge. As such, there is no infirmity or illegality in the impugned order. 6. Considering the rival submissions advanced by the learned counsel for the parties, perusing the material on record and taking into account that although the witness (P.W.-1) in question was cross-examined by all the accused persons jointly including the applicant, with a view to secure the ends of justice, the present applicant is given only one last opportunity to further cross-examine the PW-1 informant/victim as per law, as he is ready to deposit the costs and is requesting for only one opportunity. 7. Therefore, to secure the ends of justice, the concerned trial court is directed to provide only one opportunity, by recalling the P.W.-1 informant/victim, for her cross examination as per law, by the present applicant and for that fix a specific date for her cross-examination subject to the condition that a costs of Rs.5,000/- is deposited by the applicant in the concerned trial court within 30 days from today, which shall be paid to the P.W-1 informant/victim on her appearance for cross examination before the trial Court on the date so fixed by the concerned trial court. 8. It is made clear that if the costsmount of Rs.5,000/-, as directed above, is not deposited by the applicant in the trial court, within the stipulated period or the applicant seeks any further adjournment, on what so ever ground, the aforesaid opportunity shall automatically be lapsed and the trial court shall proceed the trial in accordance with law. 9. With the aforesaid directions the application under Section 482 Cr.P.C. stands disposed of.