Court No. - 49
Case :- APPLICATION U/S 482 No. - 30876 of 2018 Applicant :- Sagar Mindrani And 4 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Chandrajeet Counsel for Opposite Party :- G.A.,Firoz Haider
Hon'ble Saumitra Dayal Singh,J.
1. An amendment application filed today, is taken on record.
2. Heard Sri Manoj Kumar Yadav, learned counsel for the applicant and Sri Firoz Haider, learned counsel for the opposite party no.2 as also perused the record.
3. Perused the amendment application. Applicant seeks to delete the applicant nos. 2, 3, 4 and 5 from the array of parties and correct the prayer clause. Let the applicant nos. 2, 3, 4 and 5 be deleted from the array of the parties and necessary corrections, as prayed, be made during the course of the day.
4. The present application U/s 482 Cr.P.C. has been directed against the order dated 21.08.2018 passed by the Addl. District Judge-II, Muzaffar Nagar in Criminal Revision No. 161 of 2018 (Sagar Mindrani and others Vs. State of U.P. and others). By that order the learned court below has upheld the order dated 24.05.2018 passed by the learned trial court. By that order the learned trial court had rejected the application filed by the applicant under Section 311 Cr.P.C.
5. The learned trial court had refused the prayer to recall PW-1 (informant) for further cross examination. It appears that the applicant is facing charges for the offence under Sections 498A, 323, 504, 506 IPC. While it is not disputed that the applicant had cross examined the said PW-1, however by means of application filed under Section 311 Cr.P.C. the applicant sought to recall that witness for certain further questions proposed to be put to her.
6. The aforesaid application was also sought to be supported on the reasoning that further cross examination had become necessary upon new counsel being engaged by the applicant.
7. The above application has been rejected by the learned trial court on the reasoning that such an application cannot be allowed on the reasoning that a new counsel had been engaged. The revisional court has also rejected the said application after taking note to the aforesaid fact.
8. Learned counsel for the applicant submits that the applicant is facing charges under Section 498A IPC and other allied sections. These allegations are false and have been levelled by opposite party no.2 to cause harassment. However, during her cross examination she had not been properly cross examined as it apparent from bare perusal of the statement of that prosecution witness, annexed with the affidavit in support of the present application. He therefore, prays that one limited opportunity to further cross examine P.W.1 may be granted in the interest of justice.
9. Sri Firoz Haider, learned counsel for the opposite party no.2 has opposed the present application. He submits that sufficient opportunity having been granted to the applicant the recall of a witness may not have been lightly allowed especially for the reason given by the applicants, being change of counsel.
10. Having heard learned counsel for the parties, it is seen that though it is true that an application under Section 311 Cr.P.C. may not be lightly allowed, however, looking and the importance of the witness viz-a-viz charge being faced by the accused, sometimes a benefit of doubt even for the purpose of allowing opportunity of further cross examination may be considered by the court though, at the same time, the accused may not claim such an opportunity by way of right. He may therefore, be put to terms while being given such opportunity.
11. The applicants are the husband and in-laws of the opposite party no.2. They are facing charge of dowry which in large part appears to be based on oral testimony. In the present case allegations have also been made with respect to injury suffered by the opposite party no.2. In this regard, learned court below itself allowed the opportunity to further cross examine the doctor- PW-5. In such circumstance, the learned court below may have allowed the applicants a limited opportunity to further examine PW-1 as well since her testimony would have to be read with that of the doctor with respect to injuries claimed by her.
12. Consequently, the order dated 21.08.2018 passed by the Addl. District Judge-II, Muzaffar Nagar is hereby set aside subject to payment of cost Rs. 5,000/- to be paid to the opposite party no.2 on the next date fixed in the trial proceedings.
13. Subject to the aforesaid cost being paid by the applicants, the learned court below shall provide one date opportunity to the applicants (collectively) to further cross examine PW-1 on the date and time of convenience of the learned trial court.
14. The applicants further undertake not to seek any adjournment till the instant order is given effect to and further to in any case cooperate in the trial and seek its prompt conclusion without seeking any undue or long adjournment. The aforesaid exercise may be completed within a period of one month from the date of production of a certified copy of this order.
15. In view of the aforesaid observation, the instant application is disposed of.
Order Date :- 17.9.2018 Lbm/-