Court No. - 49
Case :- MATTERS UNDER ARTICLE 227 No. - 6320 of 2018 Petitioner :- Pushpa Devi And 2 Others Respondent :- State Of U.P. And Another Counsel for Petitioner :- Shashi Kant Pandey Counsel for Respondent :- G.A.
Hon'ble Saumitra Dayal Singh,J.
1. Heard learned counsel for the petitioners and learned A.G.A. for the State.
2. The present petition has been filed against the order dated 28.6.2018 passed by the learned Additional District and Session Judge Court No.1, Etah in S.T. No. 81 of 2014, by which the learned court below has rejected the application filed by the petitioners to recall the order dated 3.1.2018 and to allow one date opportunity to cross-examine PW-1 Pravesh Devi.
3. The aforesaid application has been rejected after taking note of the conduct of the petitioners on all earlier dates. Briefly, examination-in-chief of PW-1 is claimed to have been conducted on 15.7.2015. The matter had remained pending at the stage of cross-examination of PW-1 for almost three years. Besides earlier date, perusal of the order sheet reveals that on 5.12.2017 upon adjournment being sought by the petitioners, by way of last opportunity, the matter was fixed for 13.12.2017 for cross- examination of such prosecution witness on 13.12.2017. Another adjournment was sought by the petitioner and the other accused, which was also allowed subject to payment of cost and the matter was thus again fixed for cross-examination of PW-1 on 3.1.2018.
4. In such circumstance, an adjournment sought on 3.1.2018 had been rejected and the opportunity to cross-examine of PW-1 was closed.
5. Learned counsel for the petitioners submits that one last opportunity be granted to the petitioners to cross-examine of PW-1 who is key witness.
6. While, it may not be denied that the petitioners had a right to cross- examine PW-1, it cannot be forgotten that the examination-in-chief of PW- 1 was conducted on 15.7.2015 and that before closing opportunity of cross-examination, the learned court below had fixed two earlier dates, both by way of last opportunity. The last of the date was fixed upon payment of cost. Thus, it had been made plain to the petitioners that their opportunity to cross-examine PW-1 was coming to a close. No interference is warranted as the petitioners did not have an absolute right to cross-examine of any prosecution witness and he lost his right owing to his default.
7. It was for the petitioners to have acted with diligence, if he wanted to avail such right given to him under the statute.
8. Thus, the present petition lacks merits and is accordingly dismissed.
Order Date :- 7.9.2018 Mini