Court No. - 49
Case :- CRIMINAL REVISION No. - 2889 of 2018 Revisionist :- Aftab Khan Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Lavkush Kumar Shukla Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri Lavkush Kumar Shukla, learned counsel for the applicant and Sri Ankit Srivastava, learned AGA for the State as also perused the record.
2. The present revision application has been filed against the order dated 30.06.2018 passed by the Addl. Sessions Judge, Court No.11, Agra on paper no. 27 Kha, whereby the learned court below has rejected the application under Section 311 Cr.P.C. filed by the applicant to recall PW-2 Shyam Babu.
3. In the above regard, it is stated that the prosecution witness had not participated in the trial and bailable warrant had been issued against him, whereafter he first appeared on 07.06.2018. On which date examination-in-chief of the said witness was recorded. Also, he was cross examined by the two other accused persons. However, the applicant who is also an accused person, had not cross-examined that witness for the reason of absence of his counsel. In such circumstance, the learned court below vide its order dated 07.06.2018 directed the applicant to conclude the cross examination on the same date. In absence of cross examination being conducted, the opportunity to cross examine the PW-2 was closed. The applicant thereafter filed an application to recall of the said witness. It has been rejected on 30.06.2018.
4. Learned counsel for the applicant submits that the order of the learned court below appears to be harsh and hurried since the prosecution witness had not been participating in the trial till 07.06.2018 and therefore the applicant had no prior knowledge of appearance made by that witness on 07.06.2018. Therefore, the applicant could not examine the PW-2 due to absence of his counsel which could not be held against the applicant.
5. Learned counsel for the applicant further states that if such opportunity is granted, he would complete the cross examination of PW-2 on a single date.
6. The ground thus raised by learned counsel for the applicant merit consideration, inasmuch as once it is not disputed that the prosecution witness had not been regularly participated in the trial except, the applicant could not have had any prior knowledge of his appearance on the date i.e. 07.06.2018. In any case no unnecessary or repeated adjournment had been sought, as may justify the impugned order.
7. Consequently, the order dated 30.06.2018 passed by the Addl. Sessions Judge, Court No.11, Agra is hereby set aside. The learned court below shall provide one date opportunity to the applicant to cross examine PW-2 on the date and time of convenience of the learned trial court.
8. The applicant further undertakes not to seek any adjournment till the instant order is given effect to and further to in any case cooperate in the trial and seek its prompt conclusion without seeking any undue or long adjournment.
9. In view of the aforesaid observation, the instant application is disposed of.
Order Date :- 25.9.2018 Lbm/-