Heard learned counsel for the applicant and learned A.G.A. for the State.
The present petition under Section 482 Cr.P.C. has been filed for quashing the order dated 01.05.2009 passed by learned Additional Sessions Judge/Fast Track Court No.4, District Muzaffarnagar, in Sessions Trial No. 448 of 2006, whereby application of the applicant filed under Section 311 Cr.P.C. for recalling and cross examining the witnesses P.W.2, P.W.3, and P.W.4 namely Pravesh Kumar, Const. 1112 Nand Kishore and S.I.Rohitash Singh respectively has been rejected.
It is contended by learned counsel for the applicant that the opposite party no.2 lodged the F.I.R., against the applicant which was registered as Case Crime No. 2033 of 2005 under Section 307 I.P.C., pursuant to which, investigation was made and charge sheet was submitted and the case was committed to the Court of Sessions and the same was registered as Sessions Trial No. 448 of 2006. It is further argued that during the trial prosecution produced four witnesses and P.W. 2, 3 and 4 but could not be cross examined by the applicant's counsel, as the counsel could not present himself for cross examination and the opportunity of cross examination for the said prosecution witnesses was closed. It is next contended that the applicant engaged another counsel and during the course of discussion, it was revealed that the applicant was juvenile, therefore, an application was moved before the trial Court on 15.10.2008 for declaring the applicant to be as Juvenile which was rejected on 04.03.2009 which was challenged by the applicant by way of filing Criminal Revision No. 1683 of 2009 before this Court, in which notice was issued and operation of order was stayed vide its order dated 28.04.2009, copy of which, is annexed as Annexure-5 to the petition. It is further argued that thereafter, application under Section 311 Cr.P.C. was moved on behalf of applicant to recall the P.W.2, P.W.3 and P.W.4 for cross examination on the ground that they were not cross examined earlier and one opportunity be given for cross examining them, but the said application was rejected.Learned counsel for the applicant has further contended that since the P.W. 2 to 4 could not be cross- examined, therefore, last opportunity at the cost of applicant may be given for cross examination so that justice may be done.
Learned A.G.A. does not dispute the aforesaid contention of learned counsel for the applicant.
After hearing the learned counsel for the applicant, learned A.G.A. and after perusing the records as well as order impugned, the order impugned dated 01.05.2009 is hereby set aside with a liberty to the applicant to file a fresh application before the concerned court below within 15 days from today, and the same shall be considered and disposed of by the court below as per law after hearing the parties and if such an opportunity is allowed, the court below may imposed cost as it deem fit and proper for recalling and cross examination of the said prosecution witnesses.
With the aforesaid direction, this application is finally disposed of.
Order Date :- 22.1.2010 S.Ali