Court No. - 70
Case :- APPLICATION U/S 482 No. - 36494 of 2019
Applicant :- Chand @ Kasim
Opposite Party :- State Of Up And Another Counsel for Applicant :- A.Z.Khan Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Singh,J.
Heard learned counsel appearing on behalf of applicant and learned Additional Government Advocate representing the State.
By means of this application under section 482 of the Code of Criminal Procedure, the applicant has invoked the inherent jurisdiction of this Court for quashing of the order dated 29.1.2019 passed by learned Additional Sessions Judge/Fast Track Court, court No. 2, Muzaffar Nagar in Sessions Trial No. 1140 of 2015 (State of U.P. vs. Chand @ Kasim) arising out of Case Crime No. 100 of 2015, under Sections 304-B and 498-A IPC and 3/4 Dowry Prohibition Act, police station Budhana, district Muzaffar Nagar, whereby adjournment application dated 29.1.2019 of the applicant has been rejected by closing the evidence of PW-5.
It is submitted by learned counsel for the applicant that when PW-5 appeared before the trial court, counsel for the applicant was busy in another court, therefore, he was unable to argue the case. Under the circumstances, adjournment application dated 29.1.2019 was moved, but said application has wrongly and illegally been rejected by the trial court. Learned counsel for the applicant next submitted that the applicant has never taken any adjournment during the process of recording the statements of any prosecution witnesses. It is further submitted that the ground of adjournment cannot be said to be for ulterior purposes under the circumstances of the case. It is also submitted that prosecution evidence is still going on, therefore, it is necessary for ends of justice to give a chance of cross- examining PW-5 in order to ensure the fair trial.
Learned counsel for the applicant in support of his submissions placed reliance upon the judgement of the Apex Court in the case of Maria Margarida Sequeria Fernandes vs. Erasmo Jack de Sequeria though LRs.; 2012 (3) SCALE 550, wherein the Apex Court has held that what people expect is that the Court should discharge its obligation to find out where in fact the truth lies. Right from inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice.
Learned counsel for the applicant has also placed reliance upon the judgment of Apex Court in Jamatraj Kewalji Gvani vs. State of Maharstra; AIR 1968 SC 178, wherein the Apex Court has observed that it would appear that in our criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in court or to recall a witness already examined, and makes this the duty and ,obligation of the Court provided the just decision of the case demands it. In other words, where the court exercises the power under the second part, the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the ,court is right in thinking that the new evidence is needed by it for a just decision of the case. If the court has acted without the requirements of a just decision, the action is open to criticism but if the court's action is supportable as being in aid of a just decision the action cannot be regarded as exceeding the jurisdiction.
Per contra, learned Additional Government Advocate submitted that when PW-5 appeared before the trial court, it was the duty of defence to make all endeavour for cross-examination, but said endeavour has not been made by the defence. It is also pointed out that the impugned order was passed on 29.1.2019 while the present application has been preferred in August, 2019, which shows that applicant wants to linger on the proceedings by hook or crook.
After having heard the argument of learned counsel for the parties, 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 for recall of any other prosecution witnesses, some latitude is considered to be proper to balance the scale of justice.
Accordingly, this application is allowed subject to his paying cost of Rs. 5,000/-(Rupees five thousand only) to Sheenu Deen (informant/ opposite party No. 2), on the next date fixed in the trial. Thereafter, applicant shall be allowed one opportunity to cross-examine PW-5 by the trial court.
Considering the facts that the trial of the aforesaid case is pending since 2015, it is also directed that trial court shall make all endeavor to conclude the same, in accordance with law, as expeditiously as possible preferably within a period of six months from the date of production of certified copy of this order.
Order Date :- 30.9.2019 Sumaira