Court No. - 79
Case :- CRIMINAL REVISION No. - 3489 of 2021 Revisionist :- Rajesh And Another Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Dhirendra Kumar Pal,R.V. Pandey Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Singh,J.
Heard, learned counsel for the revisionists, learned A.G.A. for the State and perused the record.
This revision has been filed for quashing the order dated 12.10.2021 passed court below in Special S.T. No.53 of 2018 arsing out of Case Crime No.125 of 2018, under Sections 363, 366, 376 I.P.C. and Section 3/4 POCSO Act, Police Station Alau, District Mainpuri pending in the court of Special Session Judge (Exclusive POCSO Act), Mainpuri.
Learned counsel for the revisionists has submitted that after framing the charges, evidence was going on. He further submitted that PW-2 Pradeep Kumar was appeared before the court below and his examination-in-chief was conducted on 04.01.2019, and thereafter, matter was fixed for his cross- examination, but he did not appear and evidence of others witnesses were recorded by the court below. He further submitted that on 26.09.2019, recall application was moved by the revisionists and requested that first conclude the cross- examination of PW-2, then proceed for recording the statement of other witnesses, but neither his application was decided nor PW-2 was produced before the court below for cross- examination, and thereafter, prosecution evidence was closed on 18.02.2021 and case was registered for recording the statement under Section 313 Cr.P.C. The statement under Section 313 Cr.P.C. was recorded on 12.03.2021 and matter was fixed for defence evidence and no any defence was produced, thereafter, matter was posted for argument on 09.04.2021 and after argument, case was listed for pronouncement of judgment on 30.09.2021 and on 30.09.2021 court below passed an order for calling PW-2 with the observation that opportunity for cross-examination of PW-2 was not being given to the defence, therefore, matter was fixed for 04.10.2021 for cross- examination of PW-2.
Learned counsel for the revisionists has submitted that on 12.10.2021, application was moved by the revisionists for recalling of the order dated 30.09.2021 by which opportunity to cross-examine of PW-2 was given to the revisionist/accused persons, but the matter was fixed for judgment, therefore, court below has committed error for fixing the matter for cross- examination of PW-2, therefore, indulgence of this Court is necessary.
Learned A.G.A. opposes the prayer of revisionists and submitted that as per the provision of Section 137 of Indian Evidence Act, opportunity to cross-examine was to be given by the court below to other parties after examination-in-chief, but in the present case, examination-in-chief of PW-2 was conducted, and thereafter, due to mistake, he could not be cross- examined by the defence and this point was also not pointed out by the defence, at the time of closing the prosecution evidence, and thereafter, judgment was reserved. The benefit of mistake of court cannot be availed by the accused persons, therefore, court below has rightly fixed the case for cross-examination of PW-2. He further submitted that order-sheet reveals that PW-2 was called and he was present before the court below on 08.10.2021, but adjournments application was moved by the counsel for the revisionists/accused persons. In such circumstances, there is no illegality in the order passed by the court below.
Considering the arguments of learned counsel for the revisionists as well as learned A.G.A. and going through the entire records, it is evident that as per the provision of Section 137 Indian Evidence Act, the witnesses is to be cross-examined by the other parties, but in the present case, opportunity was not provided to the accused persons for cross-examination of PW-2 and after argument, this mistake was came into notice of the court below, therefore, court below has rightly posted the matter for cross-examination of PW-2. I am of the opinion that order passed by the court below is strictly in accordance with law and the same does not suffer from any illegality, infirmity and irregularity which may call for any interference by this Court.
The present revision lacks merit and is accordingly dismissed.
The court below is directed to conclude the trial of the present case, expeditiously, in accordance with law.
Order Date :- 21.12.2021 Amit/-