Court No. - 82
Case :- APPLICATION U/S 482 No. - 16290 of 2021 Applicant :- Kailash Gupta Opposite Party :- State of U.P. and Another Counsel for Applicant :- Bal Krishna Pandey Counsel for Opposite Party :- G.A.
Hon'ble Vivek Agarwal,J.
1. Sri Bal Krishna Pandey, learned counsel for the applicant has filed this application being aggrieved of order dated 17.8.2021 passed by learned Additional Sessions Judge, Court No. 1, Mathura in S.T No. 203 of 2015 (State Vs. Deepak Meena), whereby court concerned has rejected application under section 311 Cr.P.C. to recall prosecution witness no. 19, Inspector Pradeep Pandey.
2. Ground taken by the present applicant is that when Pradeep Pandey was examined and cross examined on dated 19.3.2021, due to paucity of time, he could not be examined by the counsel for the present applicant namely Sri Kailash Gupta. However, there is specific mention in the impugned order that when nobody had appeared for Sri Kailash Gupta, and despite affording sufficient opportunity PW-19 was not cross examined then right to cross examine was closed. Sri Pandey also admits that no application was made immediately thereafter seeking cross examination of PW-19. He submits that this could not be done because of setting in of second wave of corona.
3. However, grounds taken by the applicant are not made out from record in asmuch as till 26.3.2021 courts were functional. Secondly, if applicant was deprived of opportunity of cross examination of PW-19 on 19.3.2021, then immediately thereafter he could have moved an application for permitting him to cross examine the witness but instead of moving an application promptly, application was admittedly filed on 21.7.2021 under Section 311 Cr.P.C. There is no rebuttal of the finding as to the fact of the case discussed by the court below and therefore I am of the opinion that the Applicant with a view to delay trial or to fulfill lacuna cannot be allowed to invoke the the jurisdiction of this Cort. Application fails and is dismissed.
Order Date :- 20.9.2021 S.K.S.