Heard Sri Vimal Kumar Pandey, learned counsel for the applicant, Sri Suraj Singh, learned A.G.A. appearing for the State and perused the record.
This application under Section 482 Cr.P.C has been moved with a prayer to quash the impugned order dated 18.11.2019 passed by Additional District and Sessions Judge, Court No. 3, Kushi Nagar rejecting the application 10 Kha moved under section 311 Cr.P.C for cross-examination of PW-2 Gorakh Yadav in S.T. No. 273 of 2016 arising out of case crime no. 0094 of 2016.
Submission made by the learned counsel for the applicant is that the applicant is an accused in this case. He had moved an application (10-Kha) under section 311 Cr.P.C. for permission to be granted for cross-examination of PW-2 Gorakh Yadav, who could not be cross-examined on earlier two dates fixed on 21.9.2019 and 27.9.2019 because his advocate was unwell because of which, he could not appear. Further, it is argued that opportunity to the applicant is given only on two dates and no other adjournment was sought by him but the court below has rejected the said application arbitrarily on the ground that delay was being done and therefore, if the applicant is not permitted to cross-examine the PW-2, who is the main witness, that would be prejudicial to the interest of the present accused. Therefore, he has prayed that the said order be set aside and a direction be given to the court below to permit him to cross-examine the said witness.
Learned A.G.A. has vehemently opposed the said prayer and has brought to the notice that there was a direction of this Court to dispose of this case within a period of eight months and delaying tactics were being adopted by the applicant.
I have gone through the impugned. The accused-applicant is lying in jail in this case and in the concluding portion of the order, it has been recorded by the court below that examination-in-chief of PW-2 was recorded on 21.9.2019 and thereafter the accused in this case had sought adjournment whereon 27.9.2019 was fixed for cross-examination but again the cross-examination was not done and therefore, it was concluded by the trial court that the accused was not interested in cross-examining the witness and accordingly, opportunity to cross-examine the witness was closed.
Looking to the fact that it would cause extreme prejudice to the accused-applicant in case he is not permitted to cross-examine the PW-2, hence trial court is directed to fix a date and provide an opportunity to the accused-applicant to cross-examine the PW-2 without giving any further adjournment.
With the aforesaid direction, this application is disposed of.
Order Date :- 18.2.2021 AU