Court No. - 52
Case :- CRIMINAL REVISION No. - 884 of 2018 Revisionist :- Shah Alam @ Shabe Alam Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Rajat Agarwal,Virpratap Singh Counsel for Opposite Party :- G.A.
Hon'ble Rajul Bhargava,J.
Heard learned counsel for the revisionist Sri Rajat Agarwal, learned AGA for the State and perused the record.
The instant revision has been filed against the order dated 8.2.2018 passed by Sessions Judge, Moradabad in S.T. No.752 of 2016 (State Vs. Shah Alam) under Section 302 IPC, P.S. Civil Lines, District Moradabad whereby the application under Section 311 Cr.P.C. moved on behalf of the revisionist for summoning P.W.1 to P.W.5 for cross examination has been rejected. It has been submitted by learned counsel for the revisionist that the revisionist is the sole accused in the aforesaid trial and he is languishing in jail since 7.5.2016. It is argued that the statement of P.W.1 the first informant Smt. Ameena was recorded on 12.7.2017 and on the request of the defence counsel, cross examination was deferred and 10.8.2017 was fixed. It transpires that the defence counsel for the reasons best known to him did not appear to cross examine the said witness thereafter the statements of P.W.2 Mobin recorded on 7.9.2017, P.W.3 Dr. Rajendra Kumar recorded on 4.10.2017, P.W.4 Mohd. Yameen recorded on 12.12.2017 and P.W.5 Constable 1147 Anjul Kumar on 11.1.2018. However, the defence counsel engaged by the revisionist who was in jail did not appear before the Court for cross-examination and on account of which the cross-examination was closed by the trial Judge having no other option. It is next contended that the revisionist being a poor person and there is no one to do Pairvi on his behalf. However, as the statements of witnesses remained un-controverted, the revisionist engaged another defence counsel who moved an application under Section 311 Cr.P.C. on 8.2.2018 for recalling the aforesaid witnesses for cross examination. In the said application also it was clearly mentioned that as there was no one to do proper Pairvi on behalf of the revisionist and the defence counsel did not appear for cross examination for the best reasons known to him and the revisionist who is an accused in a heinous offence shall suffer irreparable loss and injury in case the valuable right of an accused to cross examine the witnesses to discredit their testimony is denied. The said application was rejected by the trial Judge by an order dated 8.2.2018.
I have perused the impugned order, I may record that undoubtedly there has been a fault on the part of the defence counsel by not appearing to cross examine the witnesses and as the revisionist was lodged in jail, he cannot be made to suffer for the deliberate or inadvertent fault of the defence counsel.
Without expressing any opinion or entering into the legality or otherwise of the impugned order, I deem it fit to dispose of the instant revision without issuing notice to opposite party no.2 with the direction that the trial Judge shall summon the aforesaid witnesses for cross examination on convenient dates fixed by him, on which date it is expected that the newly appointed defence counsel shall positively cross examine the aforesaid witnesses as a last opportunity.
In the facts of the case, I am not imposing any cost for summoning the aforesaid witnesses as the revisionist is languishing in jail.
With the aforesaid direction, the instant revision is disposed of.
Order Date :- 29.3.2018 Hasnain