Court No. - 49
Case :- APPLICATION U/S 482 No. - 3729 of 2018 Applicant :- Bhupendra Singh Yadav Opposite Party :- State Of U.P. And 1 Ors Counsel for Applicant :- Raj Kumar Mishra Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
Heard learned counsel for the applicant and learned A.G.A. for the State.
The present 482 Cr.P.C. application has been filed to quash the order dated 10.01.2018 passed by the Addl. District and Sessions Judge, Court No. 1, Etawah in Special Case No. 4 of 2014, arising out of Case Crime No. 414 of 2013, under Sections- 363, 366, 376(Gha) I.P.C. and Section 4 POCSO Act and Section 3(I)(XII) of SC/ST Act, Police Station- Bharthana, District- Etawah, pending in the court of Addl. District and Sessions Judge, Court No. 1, Etawah by which the applicant's application to recall PW-1 has been rejected.
Learned counsel for the applicant submits that PW-1 who is the victim got her examination-in-chief concluded on 21.02.2014 (wrongly mentioned as 21.02.2013 in the impugned order). However, at the relevant time, the counsel representing the present applicant failed to cross-examine the said prosecution witness and he sought repeated adjournments on two or three dates.
While adjournments were granted by the learned Court below, at the same time, his opportunity to cross-examine the said prosecution witness was closed in view of the non-appearance offered by the applicant's counsel. The applicant then changed his counsel. Consequently, all other prosecution witnesses were cross-examined as and when they were offered to the applicant. However, the cross-examination of PW-1 could not be made by the applicant.
It is further stated that the applicant did not obstruct the conduct of the trial and it was only on account of the conduct of his earlier counsel that adjournments had been sought at the stage of cross-examination of PW-1.
It is therefore submitted that the conclusion drawn by the learned Court below while rejecting the application filed by the applicant under Section 311 Cr.P.C. that the applicant has deliberately delayed the proceedings is too harsh and not entirely correct on facts.
It is submitted that in the first place, the delay had not been caused by the applicant at the stage of evidence of PW-1 only, and not at any later stage. Thus, the delay is not chronic or excessive. It is then submitted that in any case, looking into the nature of serious offence alleged and the key role in the trial to be played by the testimony of PW-1 who is the victim, the applicant ought to have been granted one opportunity to cross- examine PW-1, on such terms the court may have thought fit.
Despite service of notice, none appears on behalf of the opposite party no. 2 to oppose this application.
Learned AGA on the other hand submits that once the applicant had failed to avail such opportunity on three dates, it is no longer open to the applicant to now claim such opportunity after lapse of considerable time.
Reliance has been place on the decision of the learned Single Judge of this Court in the case of G.R.Gulati Vs. State of U.P. & another, 2014 (3) JIC 729 (Alld), wherein in paragraphs 6 and 9 it has been held as below:
"6. .....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 prompt decision of criminal case is to be commended and encouraged but in reaching at these results, the accused, who are charged with a serious offence, must not be stripped of his valuable right of a fair and impartial trial because it would be negation of concept of due process of law. Regardless of the merits of the case, the court has not only to look into the case of the prosecution but has also to keep in mind the defence version."
Having considered the arguments so advanced by learned counsel for the parties and looking into the gravity of the offence for which the applicant has been charged as also attending facts and circumstances especially that the applicant had cross-examined all other prosecution witnesses and is not seeking recall of any other prosecution witnesses, some latitude is considered to be proper to balance the scale of justice.
Learned counsel for the applicant further undertakes not to seek further cross-examination of any prosecution witnesses.
Consequently, the present application is allowed, subject to his paying cost Rs. 5,000/- to the opposite party no. 2 on the next date fixed in the trial. Thereafter, the applicant may be allowed one date opportunity to cross-examine PW-1.
Also, in view of the fact that trial is old and is pending at the stage of hearing, the same may be concluded as expeditiously as possible, preferably within a period of three months from the date of production of a certified copy of this order.
Order Date :- 27.7.2018 Abhilash