Court No. - 49
Case :- APPLICATION U/S 482 No. - 31993 of 2018 Applicant :- Gulab Chaubey Opposite Party :- State Of U.P. And 2 Ors Counsel for Applicant :- Alok Sharma Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
1. Heard learned counsel for the applicant and learned A.G.A. for the State.
2. The present application has been filed against the order dated 3.7.2018 passed by learned Special Judge/SC/ST Act, Basti in Session Trial No. 28 of 2003 (State Vs. Gulab Chaubey), arising out of Case Crime No. 156 of 2001, under Section 302 IPC and 3(2)(5) SC/ST Act, Police Station Mahuli, District Basti, by which the learned court below has rejected the application filed by the applicant under Section 311 Cr.P.C.
3. Admittedly the applicant is facing trial for offence alleged under Section 302, 323, 504 IPC. The session trial is of the year 2003.
4. As to the application for recall of witness, it is seen that the applicant has sought recall of PW-1 who is the informant and PW-2 who is the eye witness. These witnesses had been examined on 4.5.2006 and 11.2.2013; respectively. Also, admittedly the applicant had been afforded and he had availed opportunity to cross-examine those witnesses at the relevant time.
5. It has also come on record that the trial proceedings have reached their near end inasmuch as the stage of under Section 313 Cr.P.C. and defence evidence has been crossed and at present the matter is pending for hearing.
6. In such circumstance, the applicant appears to have filed an application on 29.5.2018 seeking recall of the aforesaid witness mainly on the ground of change his counsel in the meanwhile. According to the fresh legal advise received by the applicant, certain questions that were relevant had remained from been put to the aforesaid two witnesses during their cross- examination.
7. While, change of counsel can never be a ground for filing an application under Section 311 Cr.P.C., in the present case, it is also seen that such application had been filed belatedly being about 12 and 5 years after the statement of the two witnesses had been recorded.
8. Further perusal of the questions that had been proposed to be asked, it does not appear that anything of such vital importance or substance and glaring had remained from been covered in the cross-examination as may result in any circumstance to justify recall of such witness. Further prayer made by learned counsel for the applicant that such opportunity to further cross-examine of prosecution witness be allowed even upon payment of cost need not be therefore considered.
9. The present application lacks merits and is accordingly dismissed.
Order Date :- 18.9.2018/Mini