Court No. - 72
Case :- APPLICATION U/S 482 No. - 21579 of 2019 Applicant :- Jai Chandra Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Vinod Singh Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
1. Heard learned counsel for the applicant and the learned AGA for the State.
2. The present application under Section 482 Cr.P.C. has been filed to set aside the order dated 29.04.2019 passed by the Additional Sessions Judge, Court No.1, Bulandshahr, in Sessions Trial No. 641 of 2015 (State Vs. Jai Chandra), arising out of Case Crime No. 415 of 2015, under Section 302 IPC, Police Station Sikandrabad, District Bulandshahr.
3. Short submission advanced by learned counsel for the applicant is that the ballistic report was not proved by the prosecution. In such circumstances, upon completion of prosecution evidence, statement under Section 313 Cr.P.C. of the accused was recorded. Also, defence evidence had been led. When the matter had thus become ripe for hearing, the prosecution filed an application and proved the ballistic report submitted by the forensic expert. This led to filing of an application by the present applicant under Section 311 Cr.P.C. to cross-examine the forensic expert whose report has been proved by the prosecution, belatedly.
4. The above facts are not disputed by the prosecution. However, the learned court below has rejected the application filed by the applicant under Section 311 Cr.P.C. on the reasoning that the ballistic report is a document which stands proved by virtue of Section 293 Cr.P.C.
5. Learned counsel for the applicant, therefore, submits that the prosecution having been allowed to prove the ballistic report, belatedly, the applicant should necessarily have been given an opportunity to cross-examine forensic expert.
6. The learned AGA could not dispute the correctness of the facts noted above. However it is his submission that the report is only a formal evidence and all arguments thereon may remain open to be considered at the stage of hearing.
7. Having heard learned counsel for the parties and having perused the record, insofar as it is not disputed that the report of the ballistic expert dated 07.01.2017 was first proved after close of defence evidence, it cannot be said that the opportunity to cross-examine was not required in view of Section 293 (1) Cr.P.C. Under Section 293 (2) Cr.P.C., in any case, the court had the power to summon and examine the expert or to cross- examine the credibility and reliability of his report.
8. In the facts of the present case, when the applicant, who is an accused person, is facing heavy charge, had himself filed an application to cross-examine that witness, in the interest of justice and fairness of trial, it was incumbent upon the learned court below to have allowed that opportunity.
9. Accordingly, the present application is allowed. The order dated 29.04.2019 passed by the Additional Sessions Judge, Court No.1, Bulandshahr, in Sessions Trial No. 641 of 2015 (State Vs. Jai Chandra) is set aside. The learned court below shall allow one date to cross-examine the expert whose report dated 07.01.2017 has been submitted by the prosecution after close of defence evidence.
10. The applicant further undertakes not to seek any adjournment in the trial proceedings till the cross-examination of the said witness is completed. Even otherwise, the trial itself may be concluded as expeditiously as possible.
Order Date :- 30.5.2019 AHA